Science Research Council v Nassé ; Leyland Cars Ltd v Vyas
|England & Wales
|THE MASTER OF THE ROLLS,LORD JUSTICE LAWTON,LORD JUSTICE BROWNE
|26 July 1978
|Judgment citation (vLex)
| EWCA Civ J0726-4
|26 July 1978
|Court of Appeal (Civil Division)
 EWCA Civ J0726-4
In The Supreme Court of Judicature
Court of Appeal
From: The Employment Appeal Tribunal
The Master of the Rolls (Lord Denning),
Lord Justice Lawton and
Lord Justice Browne.
MR. HARRY WOOLF and MR. D.J. BLUNT (instructed by The Treasury Solicitor, SW1) appeared for the Appellants (Respondents), Science Research Council.
MR. MICHAEL HOWARD (instructed by Messrs. Barlow Lyde & Gilbert, EC4) appeared for the Appellants (Respondents), Leyland Cars.
MR. FREDERIC REYNOLD (instructed by Law ford & Co., WC1) appeared on behalf of the Respondent (Applicant) Mrs. Nasse.
MR. FREDERIC REYNOLD (instructed by Messrs, Bindman & Partners, WC1) appeared on behalf of the Respondent (Applicant) Mr. Vyas.
MR. ANTHONY LESTER, Q.C. (instructed by Messrs. Bindman & Partners, W.C.I) appeared on behalf of The Equal Opportunities Commission and The Commission for Racial Equality.
Joan Marguerite Nass is a married woman, aged 45. She has been employed since 1971 by the Science Research Council at the Appleton Laboratory at Ditton Park, near Slough. She was graded as a clerical officer. She was a member of a trade union called the Civil and public Service Association (CPSA) and took an active part in its affairs. She was Chairman of the Appleton Laboratory sub-branch.
Early in 1977 she was keen to be promoted to the grade of Executive Officer. But she was dismayed to find that she was not one of those selected for interview. Two others were asked to go to the Interview Panel. They were a Mr. Roberts and a Richardson. Mrs Nasse was convinced that she was better qualified for promotion than those two: and that she was being discriminated against because of her trade union activities. So she wrote this letter on 7 February 1977 to the Director of the Appleton Laboratory:
"I have looked at the selection procedure at Appleton and considered, as impartially as one is able to under the circumstances, the merits of the two selected candidates. They are both able officers, but I find that I have more experience and have covered a wider range of work and responsibilities. On many occasions my supervisors have made very favourable comments on my work and ability.
"I feel convinced therefore that my exclusion is attributable solely to my union activities on behalf of members of the CFSA, and propose to take the matter to the Industrial Tribunal".
On the same day the Director replied:
"Whilst your performance during the period under review as a Clerical Officer has been very good, you were not considered to have the potential for the Executive Officer grade and you were therefore not recommended for promotion. Tour CPSA activities did not influence this decision".
The Director suggested that she should appeal by an internal procedure, but she did not take advantage of it. Instead she determined to complain to the Industrial Tribunal. Meanwhile, before she lodged her complaint, she had heard it said by someone that, as married women were not mobile, they would not normally be considered to have potential for promotion.
So on 8 May 1977 she applied to the tribunal on the grounds:
"(a) Discrimination against me for earring out trade union activities.
(b)Discrimination against me because I am a married person".
On 9 June 1977 the Treasury Solicitor, on behalf of the Council, resisted her claim on the ground -
"It is denied that there was any discrimination against the applicant".
Mrs. Nasse then made application to the Tribunal for discovery of documents.
The Science Research Council were quite willing to produce, and did produce, a great number of documents. To understand them it is necessary for me to describe the way in which staff are selected for promotion.
Every year there is an annual confidential report on every person employed. It is made by his or her immediate superior. It is countersigned by the next senior, with his remarks, and then the one senior to him. It is very detailed with an assessment of his or her performance during the year and suitability for promotion.
All these confidential reports are studied by a local review board. This board goes through them, makes an analysis of them in writing and makes comments in writing on each one. They do not interview anybody but deliberate upon them and then put forward the names of those whom they recommend for promotion. Their recommendations go forward to a Central Review Board in London: and that Board decides which Clerical Officers shall be called for interview.
In the present case the persons called for interview were a Mr. Roberts and a Miss Richardson.
Mr. Roberts was an active member of the Committee of the Union (the CPSA). He was secretary of the local staff side. Miss Richardson was also a member of the CPSA.
The Science Research Council were quite willing to produce, and did produce, all the annual confidential reports on Mrs. Nasse herself: and also all the summaries and minutes of the Local Review Board relating to all other persons. But the declined to produce the confidential report on the two clerical officers (Mr. Roberts and Miss Richardson) who were selected for interview. The Industrial Tribunal ordered the production of the confidential reports of those two persons, and their decisionwas affirmed by the Employment Appeal Tribunal. Mr. Justice Bristow said:
"Disclosure of the documents is clearly necessary in order that the Tribunal may be in a position to do justice, not only to her, but to the Council, at the hearing".
When those concerned heard of this ruling, they themselves took strong objection. Mr. Roberts wrote this letter of protest to the Treasury Solicitor:
"I have always considered the report a personal one, only to be seen by a restricted number of senior SRC Officers, and I consider it most unfair that this report., which I myself have not seen and whose contents I have not had the opportunity to challenge, should be made available to a third party.
"Accordingly I object most strongly to this action".
His objection was supported by the Whitley Council Staff
Side, whose Chairman wrote:
"The Staff Side wishes to point out that the system of Annual Confidental Reporting which includes the principle that confidential personal reports on individuals should not be disclosed to other members of staff who might have a personal interest, has been agreed between the SRC and its Staff Side.
"The Staff Side must therefore object to the supply of confidential personal reports on individual members of staff to other members (or ex-members) of staff".
These objections have been reinforced by an affidavit on behalf of the Treasury Solicitor. He says that the system adopted by the Science Research Council is used throughout the whole of the Civil Service, by many local authorities, by education authorities, and by innumerable businesses throughout the country. He says that "in the sphere of employment very real harm could be caused by disclosures".
The question in Mrs. Nasse's case is whether the court should over-rule those objections and compel the Science Research Council to disclose to the Tribunal and to Mrs. Nasse the confidential reports on Mr. Roberts and Miss Richardson.
MR. VYAS'S CASE
Mr. Nat Vinyu Vyas is employed by British Leyland at their Cowley Works. He is 40 years of age. He is a Methods Analyst. He applied for a transfer from one division of the works to another. Two others besides him were interviewed. They were white. He was coloured. He failed. He considered that he wasdiscriminated against because of his race. He went to the Commission for Racial Equality. The Commission helped him by putting a series of interrogatories to British Leyland. This is authorized by section 65 of the Race Relations Act 1976. It is a printed form in which he questioned British Leyland on various matters. British Leyland answered them to the best of their ability. But I do not stop to set out the questions and answers. It would take too long. I only say that the Commission for Racial Equality were not satisfied with those answers. They helped him to make a complaint to an Industrial Tribunal. His grounds were inserted by the Commission as follows:
"I applied for a level transfer to Methods Analyst Grade 9 and was interviewed for the position. Of the two other interviewed applicants, one was already graded 9 and the other was a lower grade 7. As far as I am aware no particular qualifications were necessary for the position. Both the other applicants were appointed although the person graded 7 had less service than myself and had previously left the company twice. I have questioned the respondents on form RR.65 but I consider their response to be unsatisfactory in that they have simply stated that the other (white) applicants were more acceptable. I therefore conclude that I was rejected on the grounds of my race, colour, ethnic or national origin".
In reply the Company resisted the claim on the ground-
"There was no discrimination by the respondents against the applicant; within the meaning of the Race Relations Act 1976, Part II, paragraph 4(2) (b)".
The Commission pressed on with the case. In the name of Mr. Vyas they applied to the Industrial Tribunal for an order for further particulars. British Leyland gave them, as follows: 1. The persons interviewed for the job were Mr. A.E.J. Bedford, Mr. M.A.J.W. hamblin, Mr. J. Jarvis and Mr. Vyas. The successful candidates were Mr. Jarvis and Mr. Hablin.
British Leyland were ready to give the employment records of all those four persons with British Leyland, such as their length of service, their performance during service, the positions...
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