Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court ought not to order breach of properly given confidences unless it is necessary in the interests of justice.
Lord Salmon said: ‘If the tribunal is satisfied that it is necessary to order certain documents to be disclosed and inspected in order fairly to dispose of the proceedings, then, in my opinion, the law requires that such an order should be made; and the fact that the documents are confidential is irrelevant. The law has always recognised that it is of the greatest importance from the point of view of public policy that proceedings in the courts or before the tribunals shall be fairly disposed of. This, no doubt, is why the law has never accorded privilege against discovery and inspection of confidential documents which are necessary for fairly disposing of the proceedings.’
That documents may be confidential does not in some way exclude them from the obligations of disclosure. Lord Wilberforce said: ‘On these points my conclusions are as follows; (1) There is no principle of public interest immunity, as that expression was developed from Conway v Rimmer, protecting such confidential documents as these with which these appeals are concerned. That such an immunity exists or ought to be declared by this House to exist, was the main contention of Leyland. It is not argued for by SRC; indeed that body argued against it. . (2) There is no principle of English law by which documents are protected from discovery by reason of confidentiality alone. But there is no reason why, on the exercise of its discretion to order discovery, the tribunal should not have regard to the fact that documents are confidential, and that to order disclosure would involve a breach of confidence. In the employment field, the tribunal may regard the sensitivity of particular types of confidential documents, to the extent to which the interests of third parties (including other employees on which confidential reports have been made, as well as persons reporting) may be affected by disclosure, to the interest which both employees and employers may have in preserving the confidentiality of personal reports, and to any wider interests which may be seen to exist in preserving the confidentiality of systems of personal assessments . . (4) The ultimate test of discrimination (as in other) proceedings is whether discovery is necessary for disposing fairly of the proceedings. If it is, then discovery must be ordered notwithstanding confidentiality. But where the court is impressed with the need to preserve confidentiality in the particular case it will consider carefully whether necessary information has been or can be obtained by other means, not involving a breach of confidence. . . (5) In order to reach a conclusion whether discovery is necessary notwithstanding confidentiality the tribunal should inspect the documents. It will naturally consider whether justice can done by special measures such as in covering up, substituting anonymous references for specific names, or, in rare cases, hearing in camera’
Templeman, Salmon, Watkins LJJ
[1979] ICR 921, [1979] 3 All ER 673, [1980] AC 1028, [1979] 3 WLR 762, [1979] UKHL 9
Bailii
Employment Protection Act 1975, Sex Discrimination Act 1975, Race Relations Act 1976, European Convention of Human Rights 6
England and Wales
Citing:
Approved – British Railways Board v Natarajan EAT 1979
Arnold J considered when it was appropriate for the company’s confidential material to be disclosed to employee claimants in tribunal proceedings: ‘We think that before deciding whether an examination is necessary, the judge or chairman of the . .
Cited – Conway v Rimmer HL 28-Feb-1968
Crown Privilege for Documents held by the Polie
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these . .
Cited – Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners HL 1974
An application was made to inspect documents held by the Customs and Excise Commissioners. The plaintiff sought to inspect the documents to discover whether calculations of taxes were correct. The Commissioners swore an affidavit identifying . .
Cited by:
Cited – University of Glasgow v Rahul Jindal EAT 31-May-2001
The University appealed orders made for the discovery of documents. The claimant asserted race discrimination, and sought the references which the University had said had informed its decision on the appointment complained of.
Held: A . .
Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Cited – Home Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
Cited – Tweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
Cited – A v B and Another EAT 18-Feb-1997
The respondents appealed against a finding of unlawful sex discrimination. The claimant had been seeking psychotherapy, and the defendant sought discovery of her therapy history.
Held: The notes may have been relevant, and an order should have . .
Cited – Asda Stores Ltd v Thompson, Pullan, and Caller EAT 16-Jun-2003
The appellants had been dismissed after investigations satisfied the employer that the employees had been using illegal drugs. Cross appeals were made in the following misconduct unfair dismissal claim. The employees complained of the use of . .
Cited – British Aerospace plc v Green and Others CA 18-Apr-1995
The employer was to make 530 members of its staff redundant. Each staff member was assessed and scored. The claimants said that the method of selection was unfair, and sought disclosure of the scores of all employees.
Held: It was wrong to . .
Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
Cited – Martin and Others Gabriele v Giambrone P/A Giambrone and Law QBNI 5-Mar-2013
The claimants had made investments through their solicitors, the defendants. The investments failed. The defendants were said to have made a foul and threatening posting on facebook about the claimant after failure in earlier proceedings. The . .
Cited – Property Alliance Group Ltd v The Royal Bank of Scotland Plc ChD 19-Feb-2015
The claimant said that interest rate manipulation by the defendant bank had caused it losses in interest rate derivatives and SWAP agreements. In the course of that the claimants sought disclosure of internal documents. The defendants resisted . .
Lists of cited by and citing cases may be incomplete.
Employment, Litigation Practice, Discrimination
Leading Case
Updated: 01 November 2021; Ref: scu.182090