Employment Appeal Tribunal Rolls Building, 7 Rolls Buildings, Fetter Lane London Ec4a 1Nl

Appeal No. UKEAT/0046/20/BA EMPLOYMENT APPEAL TRIBUNAL ROLLS BUILDING, 7 ROLLS BUILDINGS, FETTER LANE LONDON EC4A 1NL At the Tribunal On 26 February 2020 Judgment handed down on 6 March 2020 Before THE HONOURABLE MR JUSTICE GRIFFITHS (SITTING ALONE) THE HOME SECRETARY APPELLANT MATTHEW JOHN PARR RESPONDENT Transcript of Proceedings JUDGMENT ______________________________________________________________________________ Copyright 2020 APPEARANCES For the Appellant MR CHARLES BOURNE (One of Her Majesty’s Counsel) Instructed By: Government Legal Department 102 Petty France Westminster London SW1H 9GL For the Respondent MS SALLY ROBERTSON (Of Counsel) Appearing via the Direct Public Access Scheme UKEAT/0046/20/BA SUMMARY PRACTICE AND PROCEDURE The Employment Tribunal at the full hearing of claims for equal pay and sex and race discrimination was entitled to review and revoke an earlier case management order which had provided for part of the proceedings to be in private under rule 50 of the ET Rules. The earlier order was expressly subject to review by the full Tribunal. There had also been a material change of circumstances within the meaning of rule 29. The full Tribunal was able to see all the documents and witness statements for the hearing, which were not before the earlier Tribunal. The second Tribunal had the benefit of being shown authorities on the open justice principle which the first Tribunal had not seen. UKEAT/0046/20/BA THE HONOURABLE MR JUSTICE GRIFFITHS 1. The Claimant (Respondent to the appeal) is one of five people currently appointed to the office of one of Her Majesty’s Inspectors of Constabulary (“HMI”). HMIs inspect the police and report publicly on the efficiency and effectiveness of the police. In 2018, he began proceedings in the Employment Tribunal claiming equal pay and, further or alternatively, alleging race and sex discrimination. His named comparator is the HMI appointed before him, who is a woman of BME heritage. The Appellant (Respondent to the claims) admits that he does “like work” within the meaning of the Equality Act 2010, and that he is paid less, but contends that the reason for the discrepancy in salaries, which are apparently individually negotiated for each HMI, is a pay policy which aims to reduce senior salaries. The Appellant also denies the allegations of sex and race discrimination. 2. I will refer to the Appellant/Respondent (the Home Secretary) as “the Appellant”; to the Respondent/Claimant (Mr Parr) as “the Respondent”; and to the comparator as “the Comparator”. 3. This appeal is about whether part of the proceedings should be heard in private, and whether some of the Employment Tribunal’s decision, when it is eventually made, should be withheld from publication or otherwise kept confidential. Procedural background 4. The Respondent began the proceedings with an ET1 presented on 6 October 2018, to which the Appellant responded with an ET3 dated 7 February 2019. At a case management hearing on 13 February 2019, an Employment Judge directed a Preliminary Hearing to consider UKEAT/0046/20/BA -1- issues raised by the Appellant, including allegations that the claims were out of time. This hearing was listed for 12 and 13 June 2019 (“the First ET”). 5. After receiving a bundle of documents, the Appellant applied by letter dated 14 May 2019 for the First ET to be held in private rather than, as is usual, in public. This was opposed by the Respondent (who was a litigant in person) by letter dated the same day. A direction was given that this question should be decided at the First ET itself. 6. Witness statements were exchanged for the First ET hearing. These were addressed to the preliminary issues to be decided at the First ET hearing and were not the witness statements that would be relied on in any final full merits hearing. 7. The Appellant followed up with a letter dated 11 June 2019 (the day before the First ET hearing) saying that, in the witness statements of the Respondent Mr Parr and of Sir Thomas Winsor, “[the Comparator’s] private and confidential information was referred to, namely information relating to her private and confidential negotiations with [the Appellant], leading to her appointment as a HMI”. With the letter were a witness statement from a Home Office HR Director and a letter from the Comparator, both supporting a further application from the Appellant. Whereas the Appellant had previously only asked that the First ET hearing should be conducted in private, now the letter applied “for part of the Final Hearing (yet to be listed) to be heard in private”. I will call this yet-to-be-listed Final Hearing “the Second ET”. UKEAT/0046/20/BA -2- 8. At the First ET, before Employment Judge Isaacson sitting alone on 12 and 13 June, the Respondent was still a litigant in person and the Appellant was represented by junior Counsel (not Counsel appearing before me). 9. The First ET decided all the issues in front of it, including the applications for hearings in private. In that respect, the following order (“the First ET Order”) dated 14 June 2019 was made by EJ Isaacson:- “Pursuant to rules 50(1) and (3)(a) of the Employment Tribunals Rules of Procedure 2013 and section 10A of the Employment Tribunals Act 1996 it is ORDERED that the following parts of these proceedings namely: 1. That any evidence or submissions that relate to the negotiation and finalising of the Claimant’s named comparator’s terms of appointment in the Claimant’s race and sex discrimination claims are heard in private. 2. That, if relevant, any evidence or submissions that relate to the negotiation and finalising of any of the other HMIs terms of appointment is heard in private. 3. That any published written reasons deal with such matters in a confidential annex which is not published. 4. That the Employment Tribunal make appropriate adjustments to any written reasons or any other documentation forming part of the public record to ensure that the named comparator cannot be identified, and that information relating to her pay negotiations remain private and confidential. This order applies to both the preliminary hearing heard on the 12 and 13 June 2019 [the First ET] and the full hearing [the Second ET]. It may be subject to review by the Full Tribunal panel at the full hearing.” 10. The wording of paragraphs 1 to 4 was taken substantially (and, for the most part, verbatim), from the formulation in a “Private and Confidential Skeleton Argument re Rule 50 UKEAT/0046/20/BA -3- Application” submitted by the Appellant’s junior Counsel to the First ET. The only part which was not suggested by the Appellant’s Counsel was the final sentence: “It may be subject to review by the Full Tribunal panel at the full hearing”. I am told that the Employment Judge did emphasise that point, however, at the conclusion of the First ET when announcing her decisions. 11. With the First ET Order (and her other orders at the First ET), the Employment Judge provided a Case Management Summary which included reasons for the First ET Order (“Reasons”) as follows:- “Rule 50 application 5. The Respondent applied under rule 50 of the ET Rules for part of the preliminary hearing [i.e. the First ET] and full hearing [i.e. the Second ET] to be heard in private. This order was granted on the basis that it was agreed by both parties that all the named comparators could be easily identified and anonymity alone would not work. 6. Section 10A of the Employment Tribunals Act 1996 (Confidential Information) enables the Tribunal to sit in private if the Tribunal is of the opinion that that hearing of evidence is likely to be “information which has been communicated to him in confidence or which he has otherwise obtained in consequence of the confidence reposed in him by another person”. 7. A Tribunal may make a privacy order if it considers it necessary in the interests of justice or in order to protect the Convention rights of any person or in circumstances identified in section 10A of the Employment Tribunals Act. 8. A privacy order is the exception to the “open justice” principle and in considering whether to make a privacy order, the Tribunal is required to give full weight to that principle and to the Convention right to freedom of expression. Orders restricting the principle of open justice must be no wider than reasonably necessary. 9. Information relating to the negotiation and finalising of the HMIs terms of appointment, and in particular of the named comparator in the Claimant’s race and sex discrimination claims, are private and confidential and the Tribunal should respect the confidentiality of information. There is a real risk of reputational damage to the named comparator if the circumstances of the pay negotiations were to enter the public domain. 10. Therefore, the Tribunal agreed to hear part of the preliminary hearing in private and that an order be made that part of the full hearing be heard in private. The terms of the order are set out in a separate Private Hearing order. The Tribunal made it clear that the order may be reviewed at any time by the full Tribunal at the full hearing.” 12. The First ET Judge listed the full hearing of the claims excluding remedy (the Second ET) for 7 days, to start on 13 January 2020. She directed disclosure of documents and exchange of witness statements for the full hearing. UKEAT/0046/20/BA -4- 13. On 6 January 2020, after the disclosure of documents and exchange of witness statements, the Respondent wrote to the ET saying that he would now be represented by Counsel on a direct access basis at the Second ET.

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