Race claims
Binder Bansel and Felicia Epstein look at discrimination claims and employers' confidentiality
An employee applies for a promotion. Her application is unsuccessful. She asks why. Her employer tells her: 'Not only can't we tell you why you failed to get the job, but we can't even tell you why we can't tell you.' The employee, who is black, notes that a white colleague is appointed and brings a claim in the employment tribunal for race discrimination. The employer denies that she was discriminated on the ground of race, but says it is prohibited by law from telling either her or the tribunal why she was not selected for the job.
How can the employee prove her case, without the employer either disclosing why she didn't get the job, or at the very least disclosing the law under which it is prohibited from informing the employee of this? Should the employer be compelled to disclose these matters? If not, how is the employment tribunal to assess the employer's case that is stifled by the law? How can the tribunal decide the employee's race discrimination claim?
The Court of Appeal considered these issues in Barracks v Coles and Commissioner of Police of the Metropolis [2006] EWCA 1041.
In that case, a black police officer applied for a position as a field intelligence officer which involved access to sensitive intelligence information. Her application was rejected. A white female (the only other candidate) was appointed instead. She was informed that she could not be told the reason, but only that it was inappropriate for her to be appointed.
Ms Barracks brought a claim in the employment tribunal, complaining of race discrimination, under the Race Relations Act 1976. Under the Act, she would need to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the police had committed an act of discrimination. Were she to prove these facts, then the tribunal is required by s 54A of the Act to uphold the complaint: see Igen Ltd v Wong [2005] ICR 931.
The police denied race discrimination, claiming: (i) the reason she was unaware of the reason that she was not selected was that the police were prohibited by law from telling her; and (ii) they were likewise prohibited by law from giving this information to the tribunal.
The tribunal chairman decided that the police had not provided adequate reasons for the allegedly discriminatory treatment in its response to the claim, and that the claimant would be denied a fair hearing if the claim were simply to proceed to a hearing. The tribunal made an unless order requiring the police: (i) 'to provide further particulars to [the claimant] stating on what ground(s) it seeks to resist her claim of unlawful race discrimination, including the reason(s) why she was not considered for the position'; and (ii) to inform the tribunal of the legal basis of its claim that by 'law' it is prohibited from informing the claimant of the reasons for her non-selection.
The police appealed. Allowing the appeal, the EAT held that a substantive hearing of the discrimination claim should take place without the disclosure requested. Unusually, the EAT held a 'disclosure meeting', from which the claimant and her lawyers were excluded, following which it concluded it was 'satisfied that [the police] are prohibited by law from revealing either the nature of the reasons for [the claimant's] negative vetting or, indeed, the legal provisions under which that refusal is made'. The EAT further held that the non-disclosure of the reasons did not infringe the claimant's rights under either Convention principles or EC law.
The claimant appealed to the Court of Appeal. However, unlike the EAT, the Court of Appeal declined at this stage in proceedings to consider legal issues of the potential incompatibility of the legal restrictions on disclosure of the vetting information with the claimant's European Community law right to equal treatment and her Art 6 Convention right to a fair hearing of her race discrimination case. Applying R (Burke) v GMC [2006] QB 273, the Court of Appeal pointed out the danger of grappling with general issues divorced from the factual content that required their determination.
The Court of Appeal agreed with the EAT that the unless order should be set aside, stating it was wrong in law to prevent the police from defending the claim at least on the basis of evidence that they were not prohibited from adducing. 'The proper way for the tribunal to deal with disputes about non-disclosure in this case,' said Mummery LJ, 'was not to make an 'unless order' but by a ruling if and when the need arises in the course of the hearing.'
However, Mummery LJ also directed the tribunal to disregard the EAT's conclusions on the applicability of Convention rights and EC law following the 'disclosure meeting', stating: 'If such a 'disclosure meeting' is to take place at all, it should not be on the appeal from the unless order and before the available evidence is available. The proper time for deciding whether there are circumstances which might justify taking such an exceptional step is at the substantive hearing after hearing all the available evidence.'
While the facts of Barracks are unusual, cases like it are likely to become more frequent for all employees and anyone holding public office where there is increasing reliance on security vetting measures, which the employer will wish to keep secret. 'Security vetting for sensitive jobs is essential,' Mummery LJ pointed out, 'there is nothing intrinsically discriminatory about it. Circumstances may require secrecy of methods and results. In all circumstances and consistently with preserving the effectiveness of security vetting, the tribunals must do the best that they reasonably can to devise procedures to ensure that avoidable injustice is not inflicted on individual applicants. A flawed vetting process could have disastrous consequences for the public and for the individual: it could result in appalling loss of life; it could result in the unjust loss of a livelihood.'
Paradoxically, the procedure that the Court of Appeal laid down in Barracks may lead employment tribunals to have to decide cases without having all of the evidence before them. How far courts will be prepared or
permitted to decide such cases by drawing inferences from the failure by the employer to disclose documents that it says it is not permitted to disclose remains to be seen.