Appeal No. EAT/105/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 24th February 1993

	Before

	THE HONOURABLE JUSTICE WOOD MC (P)

	MR T S BATHO

	MR D GLADWIN CBE JP

C S O VALUATIONS AG	APPELLANTS

MR ROGER TAYLOR	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR ANDREW CLARKE
(Of Counsel)
Miss Caroline Cheshire
100 Newbridge Street
LONDON
EC4V 6JA

For the Respondent	MR GUY HUNGERFORD
(Of Counsel)
Messrs Parry
63 Oxford Street
Whitstable
Kent
CT5 1DA

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application which was received on the 3rd June 1992 a Mr Roger Taylor complained that he had been unfairly dismissed by C S O Valuations AG, his employers, which is a subsidiary of De Beers, and deals in a large way with uncut diamonds.  The allegation of the reason for his dismissal was dishonesty in connection with those diamonds.  He alleges that there was an improper use of the procedures and says that his dismissal was unfair.

	The respondent employers, in their Notice of Appearance, agree that the dismissal took place and they allege that there was dishonest handling.  They say, theft, on two occasions and they give a precise time and a precise date.  Therefore they allege gross misconduct and otherwise make no admissions.  It follows from that state of the pleadings that before an industrial tribunal the case will be opened by C S O Valuations AG, the employers, in the usual procedure.

	We have before us a skeleton argument, prepared by Mr Andrew Clarke who appears for the employers, setting out in considerable detail the various systems whereby the Company keeps an eye on its internal staff.  The total staff are some 1,200, we are told that about 500 are actually handling diamonds.  We need not state the obvious as to the size of diamonds; the handling of diamonds, and the difficulties which one could envisage with dishonesty in those circumstances.

	Two of the overall systems which are involved are the surveillance by means of videos, which would be in different places and with different powers and at different angles, and then one has what had been referred to as the audit procedures, whereby checks; and counter checks can be made throughout the whole system, in order to see whether in fact there is a diminution of the diamond content throughout through the system.  Obviously, those surveillance procedures are mainly relevant for internal control, although clearly, information as to the actual movement of diamonds in the procedures could be useful to those outside.

	The Company applied, for a ruling under Rule 7(1)(c) of the Industrial Tribunal (Rules of Procedure) Regulations 1985, for a hearing in private.  The application was made for a hearing on this issue prior to the substantive hearing of the case but it was thought that that was not possible and that the matter would have to be raised on the first day of the substantive hearing because of a decision of this Tribunal in Milne & Lyall v. Waldren [1980] ICR 138.  As Mr Andrew Clarke submits and it must be obvious, it could be very embarrassing for someone having to open a case, not to know whether the matter would be heard in private or not.  One might very well have to adjust one's opening depending upon the decision which was reached.  It might also be embarrassing if a party wished to appeal against such a decision, and if a case had been set down for several days, it would mean a wasted several days for the tribunal.  It was thought, however, that this was necessary as a result of Milne & Lyall.  We have looked at that case and the passage which seems to have caused some problem is the comment made at the end of the judgment of this Tribunal, given by Waterhouse J.  The indication was that the decision under the rule, and it was then Rule 6 it is now Rule 7, had to be made by a tribunal, that is clear, but that it should be the tribunal which was going to hear the main case, and therefore, an indication that it should be that tribunal which should hear the application.  However, right at the end of the decision, the learned Judge says this:
		"However, if, in special circumstances a decision in relation to rule 6(1) has to be made in advance of the main hearing, the tribunal to which the originating application has been referred can meet for that purpose, and they can then consider whether they can and should give a ruling at that stage."

It seems to us quite clear that if it seems appropriate that the decision should be given under Rule 7 prior to the hearing, then so be it, there is nothing to prevent it, and indeed the guidance that there should be the same tribunal seems sensible, but on the other hand there is no absolute rule in this matter.  It may be that when the rules are changed, in the near future, that such an application could be made to a chairman sitting alone.  We see no objection to that if the rules so state it.

	In this present case, perhaps not so much damage was done to the lists at the Industrial Tribunal as might have been, because the main hearing was only listed for two days and therefore after the hearing, it took most of one day, the appeal came to this Tribunal and we have treated it as a matter of urgency.

	During the hearing of submissions in this appeal it has become clear that there are several, other cases we think another four, so there would be five in all, in which these employers have dismissed members of their staff, in not precisely the same, but somewhat similar circumstances.  All those matters are now in the "pipeline" in front of the London (South) Industrial Tribunal, and it may be that consideration could be given to them being heard, either by the same Tribunal, or if it cannot be arranged successively, within close proximity to each other.  We make no direction of any kind, it is entirely in the discretion of the learned Regional Chairman, who may wish to consider that aspect of the matter.

	Turning now to the present case.  The decision of the Tribunal was contained in paragraphs 8 and 9 of its written Reasons which were promulgated on the 3rd February 1993.  Those two paragraphs read as follows:
		"8.	Taking the case for what the advocates tell us it to be, we are satisfied that security of his premises and his stock is important to the Respondents but the disclosure of that part of his security system which relates to this case does not seem to cause so much injury that its disclosure will cause substantial injury to the Respondents' business.  Therefore we are not prepared to order that the whole of the hearing, including the speeches takes place in private.

		9.	We do not however rule out any applications as the case progresses upon certain aspects of the evidence to exclude that particular piece of evidence from hearing in public."

	Rule 7(1) itself, in its relevant parts, reads as follows:
		"Any hearing of or in connection with an originating application shall take place in public unless in the opinion of the tribunal a private hearing is appropriate for the purpose of hearing evidence which relates to matters of such a nature that it would be against the interests of national security . . . which in the opinion of the tribunal is likely to consist of -

		. . . .

		. . . .

		(c)	information the disclosure of which would cause substantial injury to any undertaking of his or any undertaking in which he works . . ."

and there is an exception.  So that, I think it is common ground here, it is necessary for the Tribunal to decide whether there was likely to be substantial injury to the employers' enterprise.  Secondly, there is the wide discretion because the phrase "the opinion of the tribunal" is used.  That discretion of course, is subject to the ordinary Wednesbury rules.

	The information that was before the Industrial Tribunal, given orally, has conveniently been reduced for us into the form of a skeleton argument.  We have also, I say we, the two Industrial Members sitting with me, have been able to peruse a substantial bundle of documents, stretching to some 120 pages which had been prepared for the hearing and which includes a substantial number of detailed documents.  With their industrial experience they are quite satisfied that there is a strong prima facie case that the contents of some of this documentation and the background given by the skeleton argument indicate that there will be likely to be substantial injury if the whole of this matter is made public and is open to examination by others.  However, that was a matter for the decision of the Industrial Tribunal and the Industrial Tribunal did not take that view.

	The decision was that there should not be a hearing in private, but that thereafter, individual applications might be made on certain aspects of the evidence.  That seems to us to indicate that there might be successive applications, by way of appeal, to this Tribunal and that would be extremely unsatisfactory.  There is a wide discretion here, it is clear that the Tribunal felt that it need not necessarily be a whole or nothing decision for the private hearing, and indeed, that initially, seems to be a course with which we would agree.  It seems to us, however, and we have posed this suggestion to both parties, that there is an alternative course here which would enable the Tribunal to have all the relevant evidence before it upon which it could reach a decision whether the whole, or part, of the evidence thereafter, need be heard in private.  That course, and Mr Hungerford has very fairly said it is difficult to argue against it, is that the opening of the case should be in private, which will probably take some time, but that at the end of the opening the Tribunal will then be able to reach a decision as to whether all the evidence should be in private, or whether, as Mr Hungerford rightly points out, there has been an over-stressing of some aspects, a colloquialism "an over-egging of the pudding", and that therefore, there need only be some part of the evidence which is heard in private.

	In his submissions to us, Mr Hungerford, we are grateful to him, has accepted that his client would not personally be prejudiced if the whole of this was heard in private, but he rightly, in his duty as a member of the Bar, puts the other case, that under public law one must be very careful not to trespass upon the basic principles that justice should be seen to be done and should be done and carried out in public.  There are the various instances, in various jurisdictions where it has been found contrary to justice for that to take place, for instance in the criminal courts and possibly even in industrial tribunals in the future where sexual problems arise.  But he has taken the point very fairly, one must maintain the balance, and he emphasises and reminds us that that balance is there to be maintained.

	Having carefully considered this, and as I said, the Industrial Members having looked through the documentation, we have reached the conclusions which we have indicated, and I think I can say by consent, that the Order is varied so that the opening is heard in private and thereafter the matter can be reconsidered by the tribunal which is hearing the case.

	The last comment which I think is made, has been pointed out to me as a matter of practicality by the Industrial Members, that some decision should be reached if possible, a fairly clear one, at the end of the opening because it would be undesirable that there should be a number of appeals to this Tribunal during the procedure.  They have indicated their views of where they think the wise course may lie, but it is not a matter for them it is a matter for the Industrial Tribunal.  Whether the Tribunal accepts the guidance indicated or not, is entirely a matter for them.  So far as this appeal is concerned the appropriate Order, subject to any submission, seems to be to allow the appeal and to substitute the consent Order, which I have already indicated.