Science Research Council v Nassé ; Leyland Cars Ltd v Vyas
|Lord Wilberforce,Lord Salmon,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Scarman
|01 November 1979
|Judgment citation (vLex)
| UKHL J1101-2
|01 November 1979
|House of Lords
 UKHL J1101-1
Lord Fraser of Tullybelton
House of Lords
Upon Report from the Appellate Committee to whom was referred the Cause Nassï¿½ against the Science Research Council, That the Committee had heard Counsel as well on Tuesday the 5th, as on Wednesday the 6th, Thursday the 7th, Monday the 11th, Tuesday the 12th, Wednesday the 13th, Thursday the 14th and Monday the 18th days of June last upon the Petition and Appeal of Joan Marguerite Nassï¿½ of 41 Syke Ings, Richings Park, Iver, in the County of Buckinghamshire praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 20th day of July might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of the Science Research Council lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Civil Division) of the 20th day of July complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay or cause to be paid to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments if not agreed between the parties: And it is also further Ordered, That the Cause be, and the same is hereby remitted to the Industrial Tribunal to do therein as shall be just and consistent with this Judgment.
Mrs. Nassï¿½ and Mr. Vyas, who are the two appellants in these conjoined appeals, have complained to industrial tribunals of discrimination against them by their employers.
Mrs. Nassï¿½ was employed as a clerical officer by the Science Research Council ("S.R.C.") a body incorporated by Royal Charter. She sought, unsuccessfully, promotion to the grade of executive officer and complained, originally, that she had been discriminated against on the ground of her activities in her trade union. Later she added a complaint of discrimination under the Sex Discrimination Act 1975.
Mr. Vyas was employed as a method analyst by Leyland Cars (BL Cars Limited)ï¿½"Leyland". He sought, unsuccessfully, a level transfer to another division in the company, and complained of discrimination on racial grounds: he is of Asian origin.
Each appeal raises the question whether and to what extent a complainant under the Employment Protection Act 1975, or the Sex Discrimination Act 1975 or the Race Relations Act 1976, may obtain discovery and inspection of documents, and, in particular, whether she or he is entitled to see confidential assessments, references, reports or other documents relating to the complainant and to other persons, particularly those persons who have been preferred to the complainant. In each case the employer has been willing to produce for inspection a certain amount of material. But in each case it objects to the disclosure of matters revealed in confidence on the ground, broadly, that this would involve a breach of the confidence under which the material came into existence, and would undermine the whole system and structure of promotion and employer management.
The appeals call for a decision on principle applicable generally to complaints of discrimination, but in the end these particular cases have to be decided, so I think it advisable to say something more about them before attempting generalisations. Mrs. Nassï¿½, as other employees of the S.R.C., had made on her an annual confidential report. This form of report, commonly used in the public service, is made by the employee's immediate superior, by an officer senior to the reporting officer, and by the next senior officer to the latter. These reports to some extent involve an assessment of personal qualities and are confidential in the sense that those signing them know that they will not be shown to the person reported on. They are also confidential in the sense that the person reported on knows that the contents of the report will only be used or disclosed for the purpose of monitoring his performance. However, the person reported on may ask to be told of some of the information given in the report.
The reports on Mrs. Nassï¿½, in accordance with the usual procedure, were considered by a local review board together with reports on other employees. The local review board made notes from the reports and then made recommendations to the director of the Laboratory where she was employed as to clerical officers to be put forward for promotion. After endorsement by the director, the recommendations were forwarded to a central review board. Mrs. Nassï¿½ was not recommended for promotion: the only officer who was recommended in 1976 was a Mr. Roberts. The central review board decided to call for interview Mr. Roberts and a Miss Richardson, but not Mrs. Nassï¿½. Ultimately Mr. Roberts and Miss Richardson were promoted.
The documents which Mrs. Nassï¿½, by letter to the industrial tribunal, requested should be supplied to her were (a) the annual confidential reports on Mr. Roberts, Miss Richardson and herself for 1975-6 (later extended in the case of Mr. Roberts to 1974) and the minutes of the local review board. The S.R.C. furnished her with copies of the report on herself but refused her other requests. After a hearing on 23rd November 1977 the industrial tribunal granted Mrs. Nassï¿½'s application and this decision (with a small variation) was upheld by the Employment Appeal Tribunal on 19th May 1978. On appeal by the S.R.C. to the Court of Appeal, that court allowed the appeal and refused Mrs. Nassï¿½'s application.
Mr. Vyas applied in October 1977 for a level transfer to a position in respect of which his employer had advertised two vacancies. Three other persons applied for the vacancies and they, together with Mr. Vyas, were interviewed. Mr. Vyas was unsuccessful. After he had made his complaint to an industrial tribunal an application was made ( inter alia) for an order requiring the employer to disclose details of the employment record of the other persons interviewed, their service records, personal history forms, personal assessment records and details of commendations, if any, together with their application forms for the post advertised. He also asked for disclosure of the completed interview report forms returned by each member of the interview panel in relation to each person interviewed. Certain other information requested was supplied to the complainant, but the employer objected to disclosing the matters referred to. As to the latter the chairman of the industrial tribunal refused the application, but it was allowed on appeal by the Employment Appeal Tribunal, with an indication that in doing so the tribunal felt constrained to follow the decision in Mrs. Nassï¿½'s case. On appeal to the Court of Appeal, an affidavit was admitted at a late stage from the employer's staff director stating that disclosure of such documents would lead to an inhibition of freedom and candour in reporting and an inhibition on the part of employees when applying for jobs or promotion. It was further stated that such disclosure would constitute a breach of faith which would be likely to lead to industrial unrest and diminution of the effectiveness of selection procedures. The Court of Appeal allowed the employer's appeal.
On the appeals coming before your Lordships very extensive arguments were heard ranging widely over many areas of substantive and procedural law, with references to American cases under the Civil Rights Act 1964 and to the European Convention of Human Rights, Art. 6. Since I regard our task in this House to be at most to establish rules which can be applied by industrial tribunals (and analogously by county courts in discrimination cases), I shall summarise the statutory background and then state the conclusions to which I have come before developing certain supporting arguments.
There are three statutes dealing with discrimination: in these appeals we are concerned with all of them. I shall refer only to such provisions as are essentially relevant. The Employment Protection Act 1975 sections 53 ff. deals with action taken against an employee for the purpose of penalising him for being a member of an independent trade union, or of preventing or deterring him from taking part in the activities of an independent trade union. Complaints go to an industrial tribunal where the employer has the burden of showing that the purpose for which the action was taken was not such as has been mentioned (see section 55(1) (b)). Complaints of discrimination in employment under the Sex Discrimination Act 1975 or the Race Relations Act 1976 also go to an industrial tribunal, but in these cases the burden of proof is on the employee. Discrimination in other matters (e.g. as to education or housing) go to a county court and are to be dealt with "as any other claim in tort" (see sections 66(1) and 57(1) of these Acts respectively).
In cases under the Sex Discrimination Act and the Race Relations Act the necessary information and material to support or refute a claim will rarely be in the possession of the employee, but, on the contrary, is likely to be in...
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