Advisory, Conciliation and Arbitration Service v John Woods

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeAuerbach
Judgment Date13 Aug 2020
Neutral Citation[2020] EWHC 2228 (QB)
Docket NumberCase No: QB-2020-001607

[2020] EWHC 2228 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

HIS HONOUR JUDGE Auerbach

SITTING AS A JUDGE OF THE HIGH COURT

Case No: QB-2020-001607

Between:
Advisory, Conciliation and Arbitration Service
Claimant
and
John Woods
Defendant

John-Paul Waite (instructed by the Government Legal Department) for the Claimant

The Defendant in person

Hearing date: 6 August 2020

Auerbach His Honour Judge

Introduction

1

This application, made by a claim under CPR Part 8, concerns section 251B Trade Union and Labour Relations (Consolidation) Act 1992. That section was inserted into the 1992 Act by section 10 Enterprise and Regulatory Reform Act 2013. This is, so far as the parties and I know, the first occasion on which section 251B has been the subject of a judicial decision. It provides as follows.

“251B Prohibition on disclosure of information

(1) Information held by ACAS shall not be disclosed if the information—

(a) relates to a worker, an employer of a worker or a trade union (a ‘relevant person’), and

(b) is held by ACAS in connection with the provision of a service by ACAS or its officers.

This is subject to subsection (2).

(2) Subsection (1) does not prohibit the disclosure of information if—

(a) the disclosure is made for the purpose of enabling or assisting ACAS to carry out any of its functions under this Act,

(b) the disclosure is made for the purpose of enabling or assisting an officer of ACAS to carry out the functions of a conciliation officer under any enactment,

(c) the disclosure is made for the purpose of enabling or assisting—

(i) a person appointed by ACAS under section 210(2), or

(ii) an arbitrator or arbiter appointed by ACAS under any enactment,

to carry out functions specified in the appointment,

(ca) the disclosure is made for the purpose of enabling or assisting an enforcement officer within the meaning of Part 2A of the Employment Tribunals Act 1996 to carry out the officer's functions under that Part;

(d) the disclosure is made for the purposes of a criminal investigation or criminal proceedings (whether or not within the United Kingdom),

(e) the disclosure is made in order to comply with a court order,

(f) the disclosure is made in a manner that ensures that no relevant person to whom the information relates can be identified, or

(g) the disclosure is made with the consent of each relevant person to whom the information relates.

(3) Subsection (2) does not authorise the making of a disclosure which contravenes the data protection legislation.

(4) A person who discloses information in contravention of this section commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(5) Proceedings in England and Wales for an offence under this section may be instituted only with the consent of the Director of Public Prosecutions.

(6) For the purposes of this section information held by—

(a) a person appointed by ACAS under section 210(2) in connection with functions specified in the appointment, or

(b) an arbitrator or arbiter appointed by ACAS under any enactment in connection with functions specified in the appointment,

is information that is held by ACAS in connection with the provision of a service by ACAS.

(7) In this section, ‘the data protection legislation’ has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).”

2

This application relates to ongoing proceedings in the Employment Tribunal in which John Woods is the Claimant and ACAS is the Respondent. In the claim before me ACAS is the Claimant and Mr Woods is the Defendant. To avoid confusion I will refer to both parties by name.

3

Mr Woods is a former employee of ACAS who was dismissed for the given reason of conduct. He has presented a claim of unfair dismissal to the Tribunal which is defended. There is much in dispute. It is important to say that no findings of fact have yet been made by the Tribunal, nor have the merits of that claim been determined. Nor is it necessary or appropriate for me to opine on any such matters. However, I do need to say something about the alleged conduct and the nature of certain of the broad issues that are already apparent.

4

Mr Woods worked for ACAS for almost forty years. At the relevant times he was a Deputy Chief Conciliator and Head of Conciliation and Arbitration. In 2018 allegations were made about his conduct. This led to an initial fact-find report. He was then the subject of an investigation which led to an investigation report of May 2019. Following that there was a disciplinary process which resulted in his dismissal. Mr Woods' appeal against dismissal was unsuccessful.

5

The allegations considered in the investigation report were of broadly three kinds. The first group related to Mr Woods' alleged conduct towards, or in relation to, individual colleagues who also worked for ACAS. I will call these the allegations of personal conduct. ACAS' case is that the investigation report found that there was evidence to support certain (but not all) of the personal conduct allegations. It is ACAS' case that the manager concerned found that certain conduct of that kind had taken place and dismissed for that reason.

6

Secondly there were allegations of unprofessional and/or inappropriate conduct in connection with certain collective conciliations. ACAS' case is that the investigators considered that there was evidence of some such conduct, but that the dismissing manager did not rely upon it. In considering and discussing these allegations, the investigation report referred to a number of particular collective disputes in which ACAS had conciliated. In relation to ACAS' involvement in certain of these disputes, the discussion, and material contained, in the report and appendices, descends into some detail.

7

There was a third, discrete, allegation, which the investigation report did not find evidence to support, and which was taken no further.

8

A proposed Case Management Preliminary Hearing in the Tribunal has been postponed pending the outcome of this claim. It is fair to assume that the Tribunal will want, in due course, to seek to clarify and confirm with the parties the specific issues that it will need to decide in order to determine whether this dismissal was or was not unfair.

9

However, ACAS' case is that certain aspects of the issues are already clear. First, there is no dispute that the investigation report was seen and considered by the dismissing officer. Secondly, in his claim form, Mr Woods is highly critical of a number of matters to do with the investigation and the report, not just in relation to the allegations of personal conduct, but also in relation to the allegations concerning his conduct in connection with collective conciliations, and how these were framed, investigated and dealt with in that report.

10

Further, although it is ACAS' case that the person who decided to dismiss did not rely on any allegations relating to conduct concerning collective conciliations, the dismissal letter does refer to them, and Mr Woods refers to what it says about them in support of his claim that his dismissal was unfair.

11

Mr Woods has confirmed during these proceedings, that the criticisms that he makes, of the handling of, and references to, the collective conciliation conduct allegations, are indeed among the matters on which he seeks to rely before the Tribunal in support of his claim that his dismissal was unfair.

12

In the Employment Tribunal disclosure obligations are not automatic. But under Rule 31 of the Employment Tribunals Rules of Procedure 2013 the Tribunal has the same power to order disclosure of documents and information, and inspection, as, in England & Wales, the County Court. Shortly after the Tribunal claim was presented, some standard directions were issued, but subsequently, because of the disruption caused by the Covid-19 pandemic, these were suspended. However, it was common ground before me (and I agree) that it is fair to assume that, at the reinstated Case Management Preliminary Hearing, or otherwise, some form of fresh general disclosure order will be made.

13

ACAS' case is that there is information, in particular within the investigation report, which it would ordinarily be obliged to disclose for the purposes of the unfair dismissal claim, because it is at least potentially relevant to the issues to which that claim gives rise. However, some of that information falls within section 251B(1). It is therefore presently prohibited from making the full disclosure that it will otherwise be required to make for the purposes of the Tribunal litigation. So is Mr Woods. So ACAS seeks an Order from this court, pursuant to section 251B(2)(e), to enable such disclosure to be made.

14

ACAS' position is that it seeks by this application merely to enable the Tribunal fairly to adjudicate the unfair dismissal claim, and the parties fairly to advance their cases, and comply with the obligations of disclosure that would ordinarily fall on them in relation to it. It is not seeking to confer an advantage, or disadvantage, on either party. It is also ACAS' position that, if the Order it seeks is granted, the Tribunal will then be invited by it to consider exercising its powers under Rule 50 of the Employment Tribunals Rules of Procedure, so as to ensure that the confidentiality of what occurred in the course of its activities in conciliating in certain collective disputes is not undermined.

15

Mr Woods opposed the application. Following a directions hearing which I recently also conducted, it came before me for a full hearing. 1 Mr Woods appeared as a litigant in person. ACAS was represented by Mr Waite of counsel. I had the benefit of reading two statements from Susan Johal of the Government Legal Department for ACAS and two statements from Mr...

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