Appeal No. EAT/960/01/ST

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 January 2003

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR D BLEIMAN
MR B V FITZGERALD MBE

X	APPELLANT

SIR JOHN STEVENS - COMMISSIONER 
METROPOLITAN POLICE SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT
IN PERSON	
For the Respondent

As Amicus Curiae	MR ANDREW WATERS
Instructed By:
Metropolitan Police Service
Directorate of Legal Services
New Scotland Yard
Broadway
London SW1H 0BG

MR BRUCE CARR
Instructed By:
Treasury Solicitor
Queen Anne’s Chambers
28 Broadway
London SW1H 9JS

MR JUSTICE BURTON (PRESIDENT):

1	This is an appeal brought by an individual who has up until now been called ‘K’, but is now to be called ‘X’, against the decision of the Chairman of Employment Tribunals sitting at London Central, in which she concluded in relation to a case brought by ‘X’, against Sir John Stevens, the Commissioner of the Metropolitan Police, that there is no jurisdiction under which the Employment Tribunal can make a Restricted Reporting Order, which is colloquially called “an RRO”.

2	On analysis the case is not wholly or, indeed, even primarily about an RRO, but before I expand further it would be appropriate to set out the Rule in the Employment Tribunal Rules, from which RRO appears.  It is Rule 16 which, of course, falls within Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure)Regulations 2001, made under Regulation 11(1) of those Regulations, which is headed up “Restricted reporting orders”.  The relevant sub-paragraph of Rule 16 is this:

“(1)  In any case which involves allegations of sexual misconduct the tribunal may at any time before promulgation of its decision in respect of an originating application, either on the application of a party made by notice to the Secretary or of its own motion, make a restricted reporting order.”

The rest of Rule 16 relates to the carrying into effect and the actual effect of an RRO.  There is provision, in sub-rule (2), as follows:

“(2)  In proceedings on a complaint under section 8 of the 1995 Act [that relates to disability discrimination] in which evidence of a personal nature is likely to be heard by the tribunal, it may at any time before promulgation of its decision in respect of an originating application, either on the application of the complainant made by notice to the Secretary or of its own motion, make a restricted reporting order”

That is further dealt with in sub-paragraph 3.

3	So far as both kinds of RRO are concerned, there is the provision in sub-paragraph (4) which says:

“(4) The tribunal shall not make a restricted reporting order unless it has given each party an opportunity to advance oral argument at a hearing, if they so wish.”

The balance of the Rule deals with its effect.

4	The nature of an RRO is in general terms -

(1)	that it is not permanent, in the sense that it ceases to have effect once the case is over and the decision is promulgated;
(2)	that it very often, if not always, relates only to some part of the case, some particular witness, some particular piece of evidence, and not necessarily, and indeed not normally, to the entirety of a proceeding.

5	It is in those circumstances that we indicated that the case is not all about RROs, and that RROs are not the end of the matter, because there is also the provision with respect to which Ms ‘X’ did make application, expressly or implicitly, to the Chairman of the Employment Tribunal, and certainly in respect of which we have heard argument, in Rule 15(6), which reads as follows:

“(6) In any case appearing to involve allegations of the commission of a sexual offence, the tribunal or the Secretary shall omit from the Register, or delete from the Register or any decision, document or record of the proceedings, which is available to the public, any identifying matter which is likely to lead members of the public to identify any person affected by or making such an allegation.”

There is a concomitant Rule 12(7) which, after reciting the obligations in relation to the Register, provides as follows:

“(7) In any case appearing to involve allegations of a sexual offence, the document referred to in paragraph (3) [which is the document containing the tribunal’s reasons, ie the judgment or decision] shall be entered on the Register with such deletions or amendments as have been made in accordance with rule 15(6).”

6	Thus, the effect of this Order, providing for a deletion or omission from the Register - which might perhaps be called “an RDO”, a Register Deletion Order, if it is to be shortened, as traditionally as now become the case with an RRO - is considerably more protective to an applicant, because it is permanent in its effect and it has relevance to the record, including the permanent record of the decision of the proceedings.

7	The appeal has been brought by Ms ‘X’ who, although she has had the opportunity of advice from ELAAS, has handled it very ably on her own behalf.  She has put in somewhat lengthy written submissions, which we have had the opportunity of considering, but in addition she has in part supplemented them by somewhat more concise oral submissions.  

8	There has been attendance before us also, on behalf of the Respondent, the Commissioner of Metropolitan Police, who has been represented today by Mr Waters.  The Respondent’s position has been neutral, albeit naturally anxious to ensure that we did not make orders which either were wrong in law or, in particular, had any possible injurious effect on him, either in this or in other applications, without justification;  and to that end Mr Waters has not opposed the allowing of Ms ‘X’s appeal, once he had been able to assist us as to the nature of his arguments, and ensured that we took them into account in making our decision.

9	We have also had the considerable assistance of the instruction of an amicus, in the shape of Mr Bruce Carr, and he too has, in the end, supported the making of an RDO and an RRO, again once he had ensured that his legal submissions were fully taken into account;  so that we did not have to hear at any great length from Ms ‘X’ today who found that what she was seeking was supported, or at any rate not opposed, both by the Respondent and by the amicus.  But it should not be thought that this decision, which we now give, is not given without full consideration, and the fact that the end product is not opposed, should not lead anyone to believe that this has not been fully argued, and that the decisions have not been arrived at after careful consideration, both of their appropriateness and of their potential consequences.  

10	It is clear that this order that we make, on appeal from the Employment Tribunal, will have, and is intended to have, consequences.  It is the third time, at least, that this matter has been considered by this Employment Appeal Tribunal.  In particular, we have naturally had our attention drawn to previous decisions of Presidents of this Tribunal.  The earlier of the two is a decision of Morison P, in Chessington World of Adventures Ltd v Reed ex parte News Group Newspapers Ltd [1998] IRLR 56.  That was a case in which News Group Newspapers Ltd was joined as a party, in order that it could argue the obvious public interest relating to the importance, which has long been accepted in the courts, of the interest, not just of the press but of the public generally, in freedom of reporting and openness in court hearings.  The second of the two decisions is also that of an Employment Appeal Tribunal, but presided over by Lindsay P, Chief Constable of the West Yorkshire Police v ‘A’ [2000] IRLR 465.  

11	The EAT’s conclusion in Chessington World of Adventures was that it did not have statutory power to make an RRO in an appeal against a decision on a question of liability, in the circumstances of that case;  and Morison P discharged an RRO previously made.  Lindsay P, in considering the matter afresh, had the additional advantage of reference to him, to which we will return, of Article 6 of the Equal Treatment Directive.  He concluded that, although there was in fact no appeal against the precise form of order actually made by the Employment Tribunal in that case, so that the RRO made by the Employment Tribunal was thus left unchallenged, nevertheless he concluded as follows, in paragraph 17 of his decision:

“The employment tribunal has no powers beyond those conferred on it by domestic statutory provision or required in consequence of European or human rights legislation.”

12	The Rules to which he was referring were slightly different in numeration to the present ones but were, in substance, the same.  However, he concluded that the Employment Appeal Tribunal, as a superior Court of Record, had, pursuant to its inherent jurisdiction, the power to make an RRO, and he did so.  He made what was described as “an RRO in perpetual terms” protecting the Applicant from identification.  

13	The result, on the face of it, of Chief Constable of the West Yorkshire Police therefore, is that the Employment Tribunal has, apparently, no power to make an RRO.  No specific finding was made in respect of an RDO, but it is plain that Lindsay P was addressing both Orders, and concluded that the Employment Appeal Tribunal did not have any power under its Rules, or by virtue of statute, but had an inherent jurisdiction at any rate to make an RRO in respect of an appeal pending before the Employment Appeal Tribunal.

14	There remained an unresolved lacuna, which has had to be addressed in this case.  The nettle was grasped at least interlocutorily by His Honour Judge Serota, by his simply making an interim RRO, on the face of it effective both in the Employment Appeal Tribunal and in the Employment Tribunal, pending this hearing.  But the question is what the position is in the Employment Tribunal.  If the Employment Appeal Tribunal has the power to make an order in respect of the appellate proceedings, does it also have a power, which Lindsay P concluded the Employment Tribunal does not itself have, namely to make such an order extend over to the Employment Tribunal proceedings, either pending the outcome of the appeal, or more important, once an appeal has been completed and the matter is remitted to an Employment Tribunal for further hearing, if it is?  

15	Ms ‘X’ in this case, of course, by definition, when she made her application to the Chairman of the Employment Tribunal, had not appealed;  and the Employment Appeal Tribunal had no role to play at that stage, and the Chairman of the Employment Tribunal in this case concluded, following Chief Constable of the West Yorkshire Police v ‘A’, that the Employment Tribunal had no jurisdiction.  She said this, in paragraph 4:

“4.  ... In the case of Chief Constable of the West Yorkshire Police v ‘A’, [2000] IRLR 465, a case on all fours with this complaint, the EAT concluded firstly that the Employment Tribunal had erred in considering it was empowered by domestic legislation to make a Restricted Reporting Order and secondly that the EAT has a jurisdiction deriving from the Equal Treatment Directive to make such an order.  The EAT is a superior Court of Record and therefore can have inherent jurisdiction.  The Employment Tribunal is a creature of statute and therefore only has the jurisdiction given it by Parliament.  In those circumstances, therefore, although in Chief Constable of the West Yorkshire Police v ‘A’ the Applicant ultimately obtained a Restricted Reporting Order, it was not one which the Employment Tribunal had the jurisdiction to give.  
5.  In the circumstances, therefore, I must refuse the Restricted Reporting Order request.”

As a result of an earlier order made by me, on a directions hearing, a schedule of issues were prepared for consideration on this appeal, and they read as follows:

“1(a)  In the absence of a case appearing to involve allegations of the commission of a sexual offence, has an Employment Tribunal the power to make a non-identification order [as what we have now christened ‘an RDO’ is there referred to] analogous to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001, schedule 1, rule 15(6)?
(b) In the absence of a case involving allegations of sexual misconduct, has an Employment Tribunal the power to make a Restricted Reporting Order analogous to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001, schedule 1, rule 16(1)?
2  In circumstances set out in 1(a) and (b), has the Employment Appeal Tribunal the power to make such orders, either (i) under its statutory powers or (ii) under any other power?
3  If the Employment Appeal Tribunal has power under either 2(i) or 2(ii), is such power confined to its own proceedings or can the Employment Appeal Tribunal impose either such order upon an Employment Tribunal?”

16	As can be seen, that is predicated upon the absence of a case appearing to involve allegations, either in the case of an RDO of a commission of a sexual offence, or in the case of an RRO, allegations of sexual misconduct.

17	Notwithstanding the terms of that schedule of issues, we began today with consideration of whether a simple RRO and/or RDO, straightforwardly pursuant to Rules 15(6) and 16(1), can be made, and should be made, by way of appeal from the Employment Tribunal in this case, simply by reference to the particular facts of this case.  We therefore turn, briefly, to those facts.

18	The allegation by Ms ‘X’ is that she made an application to the Metropolitan Police to be considered for appointment, and she was refused.  She alleges in her Originating Application, IT1, that this refusal amounted to discrimination against her on grounds of sex, within the Sex Discrimination Act 1975 (as amended).  Ms ‘X’ is a transgender and has had an operation, which has successfully transferred her from male to female, and she alleges that the reason, or at any rate a reason, for her not being taken on by the Metropolitan Police, or at any rate considered further for appointment, was discrimination against her on that ground.  That is, on the face of the Notice of Appearance put in the IT3 by the Respondent, vigorously denied.  

19	A number of reasons are put forward by the Respondent for the refusal of the police force to consider her application further.  They include in their IT3, at paragraph 9(a), a reference to another police force which had, it is recited, provided information to the Respondent, inter alia, that a person who was clearly the Applicant had been investigated in 1991, in connection with violent assaults at a residential premises, and that he (the Applicant was then living as a male) had not been “cleared absolutely”, which is what had been stated in her police job application by the Appellant, but that she remained the prime suspect, albeit insufficient evidence was available to pursue charges.  Further and better particulars were sought of that allegation and were given on 24 August 2001, and they stated as follows:

“The information provided by that other police force was that the Appellant had been arrested and interviewed on suspicion of a serious assault on a female.”

20	That, it seems, was in 1990.  The police force in question had stated that, despite overwhelming circumstantial evidence, the Appellant was released.  They further stated that their officers remained convinced that the Appellant was the attacker and there was further information given by the relevant police force to the Respondent that the Appellant was arrested and interviewed on suspicion of a murder, which had occurred in 1994.  That information had been provided in a letter dated 16 June 2000, which we have been shown, although there is no sign that it was before the Chairman below.  Further information is given as to two other police forces that are there mentioned.  The first such police force (Police Force A) had apparently informed the Respondent that there were no convictions or cautions recorded locally against the Appellant, and that local record searches had been negative, but there might be enquiry made of a yet further police force and none was made, and that no enquiry had been made of a yet different police force (Police Force C) and, consequently, no information had been received from them.  

21	It is thus plain that the Respondent was putting forward his case that he had not rejected the Appellant’s application on grounds of discriminating against her because she was transgender, but rather because of a number of matters, including the existence of these serious allegations against her.  

22	The job application itself, pursuant to an obligation to do so in the form, by reference to the requirement of giving a full explanation of any investigation by, or any involvement whatsoever that the Applicant had had with, the police previously, listed four matters.  The first is “alleged assault, wrongful arrest (cleared absolutely)”, which plainly ties in with the first matter, the serious assault on the female, to which reference was made in the IT3 and the particulars.  Secondly, March 1995, “Routine DNA request following malicious allegations received against me, test negative”.  That plainly is a reference to what, on investigation by the Respondent, became the allegation in relation to suspicion of a murder in 1994.  Then there were two further matters:  September 1998, false allegations received by a third constabulary, the one to which we referred, in quoting the further and better particulars of the IT3, as Police Force A:  and then, October 1999 “falsely implicated to rape enquiry ... false allegation has been conceded” and a reference to the police force, which in quoting the further and better particulars of the IT3 we have called Police Force C.

23	The Chairman below does not appear in her decision to have made reference to the simple issue of the applicability of the Rules to the facts of this case, but only to the question as to whether something outside the precise terms of 15(6) and 16 could be dealt with, in relation to which she gave the answer based on absence of jurisdiction, which we have cited.  It appears to us clear that that includes, or derives from, an implicit conclusion, that 15(6) and 16 did not apply.  Certainly, the matter has been argued before us today on the basis that such a summary conclusion was, in fact, made by the Chairman, and now appealed against, because we have heard argument as to whether, in fact, on that straightforward basis, by reference to the particular facts of this case, an RRO and/or RDO could and should have been automatically, or at any rate straightforwardly, made.  

24	We return to the words of Regulations 15(6) and 16(1).  The 15(6) begins “In any case appearing to involve allegations of the commission of a sexual offence”.  In those circumstances an RDO can be made.  In 16(1) the provision is that “in any case which involves allegations of sexual misconduct” an RRO can be made.  The wording is, as can be seen, different in relation to each case, and it is common ground that an RDO would be more wide-ranging than an RRO, for the reasons that we have given.

25	We turn then to consider the precise words:  15(6) refers to “appearing to involve allegations of the commission of a sexual offence”.  What does that mean?  It is clear to us that that is not limited to a reference to the pleadings themselves.  It can, in our judgment, be made to appear to a Chairman or, indeed, a full panel of an Employment Tribunal, otherwise than simply by reference to the pleadings.  If, for example, there are witness statements which can be shown, or if other submissions can be made, or indeed if there can be and is an oral hearing, it appears to us that the position can thus appear to the Tribunal to be the case.  As far as “involving” is concerned that, again, it is quite clear to us, does not mean that the allegations have to be the basis of the cause of action or, indeed, to be central to the decision-making.  It is simply that the case must appear to involve allegations of the commission of a sexual offence.  So far as sexual offence is concerned, that is defined by Section 11 of the Employment Tribunals Act 1996.(“ETA”) Section 11(6) defines sexual offence very similarly to how they apply in relation to criminal cases and evidence given there, namely:

“ ‘sexual offence’ means any offence to which section 4 of the Sexual Offences (Amendment) Act 1976, the Sexual Offences (Amendment) Act 1992 or section 274(2) of the Criminal Procedure (Scotland) Act 1995 applies (offences under the Sexual Offences Act 1956, Part I of the Criminal Law (Consolidation) (Scotland) Act 1995 and certain other enactments).”

There is thus a finite definition of ‘sexual offence’.  

26	So far as 16(1) is concerned, the words there are, “in any case which involves allegations”.  We are not sure at all that the words “in any case which involves” in effect has much, if any, different meaning from “in any case appearing to involve”.  On either basis it has to be a conclusion, by the Tribunal, on the position as then made clear to them.  It plainly does not require proof, whether beyond reasonable doubt or at all;  it simply means that the Tribunal has to reach a conclusion on what it then heard or read, as to the involvement of those allegations, and, no doubt, in order that they should decide that the complaint involves those allegations, it would have to appear to involve allegations.  But insofar as there is a difference between the two, it is interesting that it would appear that the “appearing to involve”, if that be a lower test, relates to the making of what is in fact the more wide-ranging order.  As far as involvement is concerned, that features in both sub-paragraphs;  but the allegation relevant to 16(1), and the making of an RRO, is of sexual misconduct.  This is also defined in Section 11(6) of the ETA as:

“the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed.”

27	Mr Waters has addressed us, as we have indicated, on the basis simply of ensuring that any order we make does not go further than, as he would submit, it should.  He submitted that on a strict interpretation of this case, and certainly of the pleadings in this case, and his approach to the Rules, this case does not involve, and should not be found by us to appear to involve, allegations of the commissions of a sexual offence, or of sexual misconduct.  The Appellant alleges that she was excluded as a result of discrimination, that is, that the police force did not want to have transgender applicants and all the perceived difficulties that that might cause them.  The Respondent alleges not that the Appellant was guilty of any offence, but that her health and other problems to which they were referred, coupled with the information that she had been suspected of criminal offences and was still so suspected, were enough of themselves, and that the question as to whether she in fact committed any such offences, would not feature at all in the determination of the Tribunal: indeed, that a Chairman of an Employment Tribunal, properly acting in accordance with ordinary case management practice at the Tribunal, would act so as to exclude any evidence of what precisely the circumstances were of the alleged offences or misconduct, and would certainly deny Ms ‘X’ the opportunity of using the hearing as the platform upon which she could seek to establish her innocence.  

28	That may be right, as a precise interpretation of the pleadings in the case, but, as we have already indicated, it does not appear to us, and Mr Carr supported this proposition, that the case is limited to the pleadings, or indeed to procedure on a legalistic or objective basis.  We, just as a Tribunal faced at first instance with this question, would have to, and do have to, decide, what is likely to happen, and it appears to us that the following, at least, will or may result.

(1)  We are here making no criticism whatever of the Appellant.  It is plain that she will wish, throughout the hearing, to use the occasion to assert that there is no substance in these matters, which plainly were drawn to the attention of the Respondent.  It appears to us to be inevitable that the Tribunal will hear what the Appellant has to say about them, either in a witness statement or, in any event, in cross-examination either of her or by her. 

(2)  The Appellant will, or may, develop her case of discrimination and may perhaps expand upon her basic case of discrimination simply by virtue of her transgender, developing what might involve a case that the Respondent’s discrimination extended to a deliberate, or accidental, misinterpretation of her previous record, which would go to expand upon or illustrated their attitude towards her.  

(3)  It might be, in cross-examination of the officer or officers who had acted on the information supplied, that it might be proper or appropriate, in order to attack their credibility, for her to suggest either that they did know more than they represent to know, or that they ought to have taken further steps to find out more, and would have found out more, or different, had they done so.  

29	Even apart from those specific matters, it appears to us that it is inevitable that, where such a material document as the job application is in evidence, the case involves allegations of those matters, which plainly coloured the decision of the Respondent.  We now have the letter of 16 June 2000, on which alone, if their case be right, the Respondent acted.  That letter gave no details at all about the alleged murder in January 1994, albeit that the Appellant indicates that there was a sexual element, as she understood it from the police interview she already had at the time, in that murder of an elderly lady.  That may be the case, but the murder certainly did not appear in the letter of 16 June, albeit it might be that the Appellant might wish to cross-examine to see whether, in fact, such was known.  However, there is a considerable amount of detail in the letter of 16 June with regard to the incident of 1990, described in the particulars as “a serious assault on a woman”.  That letter of 16 June indicates, as indeed, because of her being interviewed at the time, the Appellant herself knows, that the incident involved an attack on a lady psychologist in her home, and, indeed, at night, in her bed.  It was an attack by an assailant with a screwdriver, which caused the lady in question substantial injury.  It is that incident of which the officers of the relevant police force indicate in their letter that they still believe that the Appellant was guilty, indicating their strongly expressed view about the Appellant’s make-up and personality.  It would appear that, at the least, there is the opening for a suggestion from the content of that letter that that apparent physical assault contained a sexual element in it, which might be the subject-matter of a cross-examination of the Respondent’s witnesses.

30	In those circumstances, we are satisfied that, albeit not fully and possibly not at all explored before the Chairman of the Employment Tribunal, we can now see that the picture falls within Sections 15(6) and/or 16(1).  We are fortified in that by having had an oral hearing today, albeit one that has been foreshortened, both because we were in a position of not finding it necessary to call upon Ms ‘X’ at any length, and indicating at an early stage that we were likely to be in her favour, but also, of course, because this is not the substantive hearing but only an interlocutory one.  But, nevertheless, we are fortified by the view we have formed from having the opportunity of seeing and hearing Ms ‘X’, even on that limited basis.  It is clear to us, from holding that albeit limited oral hearing, that, quite apart from the documentary material to which we have referred, the Tribunal hearing will involve an exploration of these matters.  What are these matters?  Well, plainly the alleged implication in rape enquiry, which she herself raised in her application, involves the allegation of commission of a sexual offence.  Albeit not dealt with in the letter of 16 June 2000, the murder in 1994 appears similarly to have involved the commission of a sexual offence at the same time as the murder.  It is possible that the physical assault in 1990, if explored, involves an offence of indecency.  There is, in our judgment, sufficient for us to be able to be satisfied that this case appears to involve allegations of the commission of a sexual offence similarly and, with greater certainty, it is clear to us that it is a case which involves allegations of sexual misconduct, not of course by reference to the simple fact of Ms ‘X being a transgender, but by reference to the incident to which we have referred, and which we have no doubt must, and will be, referred to in the course of a Tribunal hearing.  

31	That would be sufficient for us to allow the appeal in this case, and to make an RDO and an RRO, but, not least because the matter has been fully argued, and we have had the benefit of submissions, as we have indicated, of an amicus, we conclude it is appropriate for us to proceed further and assume, for the purposes of this part of our judgment, that the facts would not have fallen within Sections 15(6) or 16, as was implicitly assumed by the Chairman below, and thus deal expressly with the actual decision of the Tribunal that the Employment Tribunal had no jurisdiction.

32	The issue inevitably revolves round the Equal Treatment Directive (76/207/EEC) Council Directive 1976, whose purpose, by Article 1, was to put into effect in the Member States the principle of equal treatment for men and women, in the respects set out in the Directive, and which has led to the passage, by this country, of sex discrimination legislation.  Article 6 of that Directive reads as follows:

“Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5 to pursue their claims by judicial process after possible recourse to other competent authorities.”

33	The Appellant submits, as indeed was submitted in the Chief Constable of the West Yorkshire Police case, that if she does not have the protection of an RRO and an RDO, there would be a breach of Article 6 because, she asserts, she and others like her would find it difficult, if not impossible, to bring a claim because they would be scared of airing, in a public hearing, the facts and details and histories of their transgender situations and problems, and that Article 6 of the Directive should thus be used, in order to supplement and interpret, and enforce, the statutory legislation and procedures and the court procedures that we have.  

34	In the Chief Constable of the West Yorkshire Police, it appears that the Employment Tribunal had made an RRO, by reference to what was called “the European route”, and at paragraph 23 of the judgment of Lindsay P, he cites a quotation from the Employment Tribunal Decision in that case.  By coincidence it was also their paragraph 23, and it read as follows:

“23.  Our second route might be described as the European route.  It brings together the European notion of ‘the effective remedy’ and the domestic notion of access to justice.  We find that, on all the evidence before us, not to grant the order would deter the applicant from seeking a remedy for sex discrimination.  The respondent is an emanation of the State.  The applicant has a direct right under the Equal Treatment Directive not to suffer discrimination in access to employment.  Article 6 obliges the United Kingdom to ensure that she has effective remedies.  The only way in these circumstances in which this applicant can have an effective remedy is for us to grant the order sought.”

Lindsay P said:

“There has been no appeal against that and I am not in a position to rule the tribunal to have there been wrong in law.”

However, as we have indicated, leaving aside what is called “the European route”, Lindsay P on behalf of the EAT, concluded that the Employment Tribunal had no power to make an RRO, by reference to the English statutes and rules, and only found the power within the EAT in relation to its proceedings by reference to the EAT being, as he concluded, a superior Court of Record, with inherent jurisdiction.

35	We do not, for the purposes of today, make the finding of fact that the Appellant falls within that category of being someone who would, but for an RRO or an RDO, be deterred from seeking a remedy for sex discrimination.  It would appear to us that that is likely to be the case, and Mr Waters indicated in argument that he also, although he has no instructions to concede the point today, can see the force of it, not least given the extreme lengths to which this Appellant has gone in order to establish her point before various Tribunals up to and including today.  It is certainly the case that before any order analogous to, but wider than, Rules 15(6) or 16(1) was made by reference to Article 6, and the asserted deterrence of an applicant from seeking a remedy, there would have to be such a finding of fact by the Tribunal, as was apparently made in the Chief Constable of the West Yorkshire Police case, and as would, no doubt, be asserted, and probably made, in the case of Ms ‘X’.  

36	If we were to rely only on this wider order in order to allow this appeal, then we would need to have remitted the matter to the Employment Tribunal, absent any concession by Mr Waters, to decide that point of fact, as it would not have been a finding of fact which we would have felt, as an appellate court, comfortable in making.  But, as is apparent, we have allowed the appeal on the more straightforward basis, and thus, do not need to make such a finding.  But, on the assumption that an applicant is one who falls within that category, Article 6 plainly does mean that this Member State had to introduce into its national legal systems the appropriate measures there referred to, and the Employment Tribunal in the Chief Constable of the West Yorkshire Police case was certainly satisfied that it had the power to make an order by what was called “the European route”, and this was not, it seems, appealed, and thus survived the result of Chief Constable of the West Yorkshire Police.  But the Chairman here has decided that there is no such jurisdiction.  Is there?  We are satisfied that there is.  The obligation under Article 6 is one imposed on the Member State and its judicial bodies, a public body such as this Tribunal and, indeed, the Employment Tribunal, doing justice.  This was certainly found to be the case by Mummery LJ, another former President, in the Employment Appeal Tribunal, as approved, when the matter went to the Court of Appeal, in Biggs v Somerset County Council [1996] IRLR 203, and, as further approved in the subsequent decision of the Court of Appeal, with the same constitution, in Barber v Staffordshire County Council [1996] IRLR 209.  Mummery P indicated, in the passage cited and approved in Biggs at paragraph 13, that Article 6 does not give a self-standing remedy.  He said this:

“(2)  Prima facie, a claim for unfair dismissal is brought under United Kingdom domestic law.  There is no Community right not to be unfairly dismissed.  ... The domestic legislation lays down the conditions, including time limits for the making of claims, relevant to the enforcement of the right.”

But at sub-paragraph 4, he said further:

“(4)  An industrial tribunal may, within the scope of its statutory jurisdiction, administer, apply and enforce not only United Kingdom domestic law but also Community law.  ... Thus, in the exercise of its statutory jurisdiction, the industrial tribunal is bound to apply and enforce relevant Community law, and disapply an offending provision of United Kingdom domestic legislation to the extent that it is incompatible with Community law, in order to give effect to its obligation to safeguard enforceable Community rights.”

37	Both the Biggs and the Barber cases were cases in which the Respondent was a public body, which would be subject in terms itself to the impact of the Equal Treatment Directive, as an emanation of the State within the relevant Community law.  It is right to say that there is no authority in terms applying the principle referred to by Mummery P, and approved by the Court of Appeal in those cases, to a Respondent which is not an emanation of the State, although a similar consideration arose in Coutts v Granada Hospitality Ltd, to which we have been referred by Mr Carr.  In the European Court of Justice, reported in 1998 IRLR 656, it was concluded that Article 6, providing that Member States are to introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves the victim of discrimination to pursue their claims by judicial process, requires Member States to ensure judicial protection for workers whose employer refused to provide references, as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment.  Thus, the conclusion was that UK sex discrimination legislation which, on its face, excluded those from having a right who had ceased to be employed, should be interpreted in a way in which the English courts had not so interpreted them, and would not but for Community law have interpreted them in accordance with ordinary English principles, to extend the remedy, and effectively give almost a new cause of action, and Granada Hospitality Ltd was, as Mr Carr has pointed out, by no stretch of the imagination, an emanation of the State.  

38	When the matter returned to the Employment Appeal Tribunal per Morison P, reported in 1999 IRLR 452, this Tribunal gave effect to the European Court judgment, and construed the Sex Discrimination Act, so as to bring it in conformity with the Equal Treatment Directive, and enable the claimant to make a victimisation complaint in relation to events that occurred after the employment relationship had terminated.  

39	The European Court had held that the principle of effective judicial control, laid down in Article 6, would be deprived of an essential part of its effectiveness, if the protection which it provided did not cover measures which an employer might take as a reaction to legal proceedings brought by an employee to enforce compliance with the principle of equal treatment.  Therefore, protection against retaliatory measures by the employer, taken after the employment relationship had ended, fell within the scope of the Directive, and, as we have indicated, it was found by the EAT, consequently, to fall within the scope of the legislation by virtue of the impact of the Directive, even though the Respondent was not an emanation of the State.  The obligation thus fell on the courts and tribunals.

40	In the Chessington World of Adventures Ltd case, to which we have referred, there was, it would seem, no consideration of the impact of the Equal Treatment Directive.  There was a consideration of it in Chief Constable of the West Yorkshire Police and, as we have indicated, this was said to be the direct “European route”, which had been apparently adopted, in circumstances unknown to us, because we have not got a copy of their decision, by the Employment Tribunal.  But, notwithstanding the Equal Treatment Directive, the EAT, per Lindsay P, concluded that the Employment Tribunal did not have a statutory power.  We have read paragraph 17 of their decision to that effect.  

41	In those circumstances, Article 6 was not used by the EAT in that decision to do what in Human Rights terms has now become known as ‘read down’ or in this case ‘read up’ the powers, Rules and Regulations of the Employment Tribunal.  At paragraph 22, and I use the up-dated numeration of the rules, which we have indicated earlier have changed since the decision of Lindsay P, he said as follows:

“Employment Tribunal Rule 15(1) does not itself empower the Tribunal to make any RROs.  If it did, Rule 16 would have been totally unnecessary.  If I am right, domestic legislation did not empower the Tribunal to make an RRO on the facts of this case.”

42	Lindsay P appears to have treated the existence of the Equal Treatment Directive as a wholly independent route for the Employment Tribunal, and thus as left unappealed before him;  and he construed the Rules without reference to it.  That may have resulted, either from the way the matter was argued before them, or because, in effect, there was not a full appeal before them, for reasons which are unclear, but which left the actual decision of the Employment Tribunal in that regard unaltered, such that, in some way, the minds of the Appeal Tribunal thus concentrated wholly on what one might call ‘an English law approach’.

43	It cannot be doubted that, if one applies a simple English law approach, Employment Tribunal Rule (“ET Rule”) 15(1), to which reference was made by Lindsay P in the passage we have just quoted, would not be of assistance.  It reads as follows:

“Subject to the provisions of these rules, a tribunal may regulate its own procedure.”

It must then be said, as Lindsay P made clear, that provision is then made for an RDO and an RRO, but only in the limited circumstances set out in ET Rules 15(6), 16(1) and 16(2), so that, on the basis of traditional English construction, it must be said that the Tribunal would not be able to regulate its own procedure by allowing an RRO or an RDO, save in the specified circumstances, particularly where there are also other rules, which we should now refer to

“Rule 10(2):
Any hearing of or in connection with an originating application shall take place in public.
Rule 12(5):
The clerk shall transmit the documents referred to in paragraphs (2) and (3) to the Secretary who shall enter them in the Register [that is the decision] and shall send a copy of the entry to each of the parties and, where the proceedings were referred to the Tribunal by a court, to that court.”

44	Before we turn to what we conclude to be decisive in this case, namely the impact of Article 6 on ET Rule 15(1), we should deal with two matters.  

(1) We are content to decide this case on the basis that the Respondent is an emanation of the State.  It appears to us however, that the conclusion that we are reaching would apply even to a Respondent which is not an emanation of the State, such as Granada Hospitality Ltd.  We can see no relevant distinction between the two, and none has been drawn to our attention, once it is apparent, as we see to be clear, that the duty is that laid upon the Tribunal, as well as on a Respondent which is an emanation of the State.  We can see no logic, if it be right that there exists the power to make an RRO and an RDO, in limiting it to cases as between applicants and respondents who are emanations of the State and, indeed, would conclude that that would be a most unfortunate and unhelpful result.  There is no need for any such logic, once it is concluded that the duty is on the Tribunal as well as on a public Respondent and that thus, the Tribunal must, as it had to in Coutts, in a case which appears to us to be a fortiori to this, namely where it involved the extension of a cause of action, as opposed to the giving of an effective remedy to an existing cause of action, for a private Respondent.

(2) We have referred above to the difficult position in which the law has been left by the Chief Constable of the West Yorkshire Police case, where the conclusion of a difference between the Employment Tribunal and the Employment Appeal Tribunal is said to rest on the basis that the Employment Appeal Tribunal is a body with an inherent jurisdiction.  It may be that the Employment Tribunal does have an inherent jurisdiction, but this is not the case in which that should be decided, even one in which there has been the benefit of an amicus curiae.  It is plain that Employment Appeal Tribunal is a creature of statute.  There may well arise cases such as, for example, cases in which it is sought to exercise an inherent jurisdiction to strike out a hopeless appeal, in which the issue of whether the Employment Appeal Tribunal has the kind of inherent jurisdiction that the High Court has, can be tested.  It is right to say that the statute which created the Employment Appeal Tribunal, or at any rate continued its creation, replacing of course, earlier statutes in that regard, namely Section 20 of the Employment Tribunals Act 1996, (‘ETA’) provided that it was a superior Court of Record, but that pronouncement, by Section 20(3), was itself a statutory pronouncement.  We accordingly reach no conclusion as to whether this Tribunal has an inherent jurisdiction, and expressly leave the matter open for further consideration.

45	However, we consider the answer here not to depend upon whether or not the Employment Appeal Tribunal has an inherent jurisdiction.  It too, like the Employment Tribunals, is governed by Rules, and it too has a provision applicable to it which is similar to ET Rule 15(1), to which we have referred, namely in section 30 of the ETA, which, by sub-paragraph 3, provides as follows:

“Subject to Appeal Tribunal procedure rules, the Appeal Tribunal has power to regulate its own procedure.”

46	We conclude that the correct, fair and just course is that in relation both to the Employment Tribunal and the Employment Appeal Tribunal Article 6 of the Directive should impose its effect on those provisions, and that that is the route whereby both Tribunals have the power and, indeed, the duty to enforce the Directive.  This is not a question, therefore, of finding the Government in breach of its obligations under the Directive, as per Francovich, or anything of the kind, it is question of the Tribunal’s interpreting the existing Rules so as to ensure that the judicial measures allow an Applicant to bring a claim under, inter alia, the Sex Discrimination Act and is not hampered or deterred by an inappropriately restrictive reading of the powers of either Tribunal.

47	We turn then to the ET Rule 15(1): “Subject to the provisions of these rules it may regulate its own procedure”.  We have no doubt that that must include, where the factual finding is made or conceded, to which we have referred above, as to the otherwise deterring of an Applicant, that it can make orders analogous to an RDO and/or an RRO in order to ensure confidentiality in respect of the identity of the Applicant;  and take such steps as will avoid publicity, in terms of the press giving details of the identity and precise circumstances of such a person, and ensure confidentiality in terms of the removal or omission of such information from public records and judgments.  That may not occur on every occasion, but we are satisfied the Tribunal has power to do it and to do it, by reference to its general powers under ET Rule 15(1).  No doubt analogy will be drawn to circumstances such as those specifically provided for in ET Rules 15(6), 16(1) and 16(2), but the power is wider than those precise circumstances.

48	In those circumstances it might just conceivably arise that a particular applicant might even be able to put forward a case that the hearing itself should not be in public, and thus require some effective overruling or overriding of the provisions which are plainly set out in ET Rule 10(2) that any hearing shall take place in public.  We think it fairly unlikely that that will arise.  If any order was made in that regard, the fundamental principle of the courts that all hearings should be in public and, indeed, the provisions of Article 6 themselves would, no doubt, have to be borne in mind, but it appears to us that the principle of Article 6 of the Equal Treatment Directive, as applied to ET Rule 15(1), might require such an order.  However leaving aside any special considerations applicable to ET Rule 10(2), there appears to us to be little difficulty in accommodating a wider RDO or RRO, in the sense of one that is applicable in more than the limited circumstances referred to, into the procedural process.

49	We note that ET Rule 2 requires a Secretary on receiving an originating application to send a copy of it to the Respondent etc., under sub-rule (1), and under sub-rule (2) to enter such of the details of an originating application as are referred to in sub-paragraph (4), which of course includes the identify of the Applicant, either within 28 days of receiving it or, if that is not practicable, as soon as reasonably practicable thereafter.  There is thus a leeway period of 28 days before the Secretary is obliged to enter up those particulars into the record.  That appears to us to be ample time in which an applicant who wishes to make an application for an RRO or, in particular, an RDO, can make one before the duty of the Secretary arises.  That application can and should therefore be made at the earliest opportunity, and ideally together with the originating application.  It is possible, of course, that in certain cases an applicant who desires such an order may have the consent of the respondent.  That clearly should be so indicated.  It is equally possible that it will be obvious, for example, that the precise terms of ET Rules 15(6) or 16(1) are fulfilled, even by reference to the pleadings themselves.  On the other hand, it may well be that an oral hearing will be necessary, and, of course, under ET Rule 16(4) the Tribunal is not supposed to make an RRO unless it has given each party an opportunity to advance oral argument at a hearing if they so wish, and that would, no doubt, apply not only to an RRO or RDO in the strict sense but also to the kind of wider or more flexible order which we now have in mind.  It may be in some cases that it is only by an oral hearing that a satisfactory conclusion can be reached by a Chairman but clearly, in relation to any such oral hearing itself, an RRO or RDO must, at least for interim purposes, apply.

50	So far as concerns the rest of the ET Rules, there appears to us to be nothing inconsistent with the making of such an order, and Mr Carr has referred us to Regulation 10 itself, which provides that the overriding objective of the ET Rules is to enable Tribunals to deal with cases justly, and that, by Regulation 10(2), dealing with a case justly includes, so far as practicable, (a) ensuring that the parties are on an equal footing;   and, therefore, the provisions of the overall objective do nothing to detract from and, if anything, support, the interpretation which we conclude a Tribunal is obliged to give to ET Rule 15(1).  

51	The other rule to which our attention is drawn by Mr Carr is ET Rule 11, which provides:

“The Tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and ... otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings.”

That too would lead, in an appropriate case, to consideration of the order which we have in mind.

52	We are entirely satisfied, therefore, that there is scope for such an order, where there is the finding of fact as to deterrence from proceedings under the Sex Discrimination Act, to which we have referred, and thus that the Chairman of the Employment Tribunal was wrong.  We do not blame her at all, because she faithfully followed the decision of the Employment Appeal Tribunal in Chief Constable of the West Yorkshire Police, in reaching a conclusion that she had no jurisdiction.  

53	So far as the Employment Appeal Tribunal is concerned, we have already indicated that we would not wish to distinguish between the Employment Appeal Tribunal and the Employment Tribunal, on the basis that the Employment Appeal Tribunal is said to have some inherent jurisdiction.  Quite apart from our doubts as to whether, and on what basis, that is the case, there is the further complication which Mr Carr has sought to address but, in our judgment, in this rare instance, without success.  He has referred to the ETA, Section 35, which reads as follows:

“For the purpose of disposing of an appeal, the Appeal Tribunal may –
(a) exercise any of the powers of the body or officer from whom the appeal was brought, or
(b) remit the case to that body or officer.”

He submits that that gives a power to the Employment Appeal Tribunal to remit the case to a body and to clothe that body with the powers of the EAT.  He submits that it cannot make any sense that, if the EAT can make an RRO or RDO in relation to its appellate proceedings, that that should not be capable of being applied to the Employment Tribunal below.

54	We have already indicated the strangeness of a result by which, even if that be right, it would need an appeal in order to clothe the Employment Tribunal body with an original jurisdiction.  But we are in any event far from convinced that it is right.  If the Employment Tribunal itself has no original jurisdiction, we cannot conceive that an appeal body, which happens to have in relation to its own proceedings such a power, can, whether by remission or otherwise, clothe the inferior body with a body which it does not otherwise have.  That is another reason why we conclude that it is right to analyse this position, not by reference to any different capacity of the EAT, but by reference to an interpretation of each body’s own Rules.

55	We have already quoted Section 30(3) of the ETA, which is to similar effect as ET Rule 15(1) with regard to the Employment Tribunals.  That interpretation of Section 30(3) is even easier to accommodate within the framework of the existing Employment Appeal Tribunal Rules (“EAT Rules”), than it was to accommodate a broad reading of ET Rule 15(1) within the framework of the Employment Tribunal Rules, because there is not anything like the same specificity in the Employment Appeal Tribunal Rules as there is in the Employment Tribunal Rules.  EAT Rule 20(3) refers to the power of the Registrar to omit from any Register kept by the Employment Appeal Tribunal which is available to the public, certain matters, in circumstances analogous to ET Rule 15(6).  But there does not appear to be any specificity as to what those Registers are, or as to the precise duty of the keeper of the Register.  Of course, the provision in EAT Rule 29 relates to oral hearings, as in any court of law, but there too it would appear that, in the whole unlikely circumstances in which the court might be persuaded by reference to Article 6 of the Equal Treatment Directive to consider a hearing otherwise than in public, the same principle in terms of the possible balancing act, provided it is carried out with a proper exercise of discretion, might well apply as in relation to the consideration of the holding of private hearings at the Employment Tribunal.

56	In those circumstances, we conclude that both in the Employment Tribunal and in the Employment Appeal Tribunal there is power for those bodies to regulate their own procedure, so as to include, in a proper case, an RRO or an RDO or other analogous to them or to make some provision in respect of confidentiality of the identity of the applicant, or, no doubt in an appropriate case, a respondent, not limited by the precise terms of the existing Rules.  

57	Insofar as we have referred to Chief Constable of the West Yorkshire Police v ‘A’, we are not strictly bound by that decision, any more than by any other decision of the Employment Appeal Tribunal, although plainly we would pay it considerable respect, both by virtue of its being a decision of a parallel tribunal and, in particular, one presided over, as this is, by a President of this Tribunal, but we are satisfied that there was not the same consideration in that case, albeit that in that case too there was the benefit of an amicus curiae, as there has been before us of the point which has appeared to us to be decisive, namely (particularly in a case where a respondent is an emanation of a public body, although we do not regard that, for reasons we have given, as decisive) the impact of Article 6 on EAT Rule 15(1) and Section 30(3) of the ETA, the latter of which provisions does not appear to have been in any event specifically referred to in that judgment.  

58	In those circumstances, we allow the appeal and would emphasise our thanks to those who have made their submissions, both oral and written, to us.