Science Research Council v Nassé (British Leyland UK Ltd v Vyas)

Confidentiality alone neither creates privilege from discovery nor gives confidential employment records public interest immunity. Relevance is necessary but does not by itself entitle a party to disclosure.

The governing question is whether disclosure is necessary to dispose fairly of the proceedings or save costs. The tribunal must consider the sensitivity of the information, third-party interests, available alternative sources and possible protective measures. Where disclosure is necessary, confidentiality must yield to justice.

A tribunal should ordinarily inspect disputed confidential documents before deciding whether disclosure is necessary. It may restrict disclosure through redaction, anonymisation or, exceptionally, a private hearing. The discretion must be exercised openly and without a presumption that disclosure is confined to very rare cases.

These conjoined appeals arose from employment discrimination complaints. Mrs Nassé alleged discrimination connected with trade union activity and marital status after she was not recommended for promotion by the Science Research Council. Mr Vyas alleged racial discrimination after British Leyland declined his application for a transfer.

Each complainant sought employment records, assessments or interview materials concerning successful or competing employees. In Mrs Nassé's case, the industrial tribunal ordered disclosure without inspecting the documents and the Employment Appeal Tribunal upheld that decision. In Mr Vyas's case, the industrial tribunal refused disclosure, but the Employment Appeal Tribunal reversed that decision.

The Court of Appeal, in [1979] Q.B. 144, allowed both employers' appeals. The common issue before the House was whether confidential personnel records enjoyed public interest immunity and, if not, how the tribunal's discretion to order discovery and inspection should be exercised.

1. Disposition. The House unanimously dismissed both appeals. Lord Wilberforce delivered the leading speech. Lord Edmund-Davies agreed with his reasons and proposed order. Lord Scarman adopted Lord Fraser of Tullybelton's reasoning subject to observations of his own. The matters could return to the respective industrial tribunals for examination of the documents and a fresh decision about disclosure. Each appellant was ordered to pay the respective respondent's costs in the House.

2. No public interest immunity. Per Lord Wilberforce, confidential assessments, references and employment reports do not constitute a class protected by public interest immunity. The documents concerned private employment rights and were not analogous to the governmental or informer material protected in Conway v Rimmer [1968] AC 910 or D v NSPCC [1978] AC 171. Class immunity would also conflict with Parliament's policy that discrimination tribunals should have access to the information needed to determine complaints.

3. Confidentiality and necessity. Their Lordships agreed that confidentiality alone creates no privilege from discovery. It may nevertheless carry substantial weight in the tribunal's discretion. The tribunal may consider the sensitivity of personal information, the interests of reporting officers and other employees, and the wider value of confidential assessment systems. Relevance is necessary but insufficient. The ultimate question is whether disclosure is necessary for disposing fairly of the proceedings or saving costs. If it is necessary, disclosure must be ordered despite the confidence.

4. Procedure and safeguards. A tribunal faced with an objection based on confidentiality should ordinarily inspect the documents before ordering disclosure. It should consider whether sufficient information can be obtained through admissions, statutory questionnaires or other non-confidential sources. Where disclosure remains necessary, it should consider redaction, anonymisation and, in a rare case, a private hearing. The timing and form of inspection remain flexible. Their Lordships approved the practical guidance in British Railways Board v Natarajan [1979] ICR 326.

5. No presumption against disclosure. Lord Wilberforce, Lord Salmon, Lord Edmund-Davies and Lord Fraser rejected the Court of Appeal's suggestion that disclosure should occur only in very rare cases. The tribunal must approach the statutory test with an open mind. Lord Salmon particularly emphasised that confidentiality becomes irrelevant once disclosure is found necessary for a fair disposal.

6. Application. In Mrs Nassé's case, disclosure had wrongly been ordered without inspection. In Mr Vyas's case, the Employment Appeal Tribunal had likewise ordered disclosure without an adequate examination of necessity. The Court of Appeal had therefore been right to set aside those orders. The tribunals remained free to order disclosure of any documents, or parts of documents, found necessary after inspection.

1. House of Lords: Both complainants' appeals were dismissed unanimously. The tribunals remained entitled to inspect the disputed documents and determine afresh whether any disclosure was necessary.

2. Court of Appeal: In [1979] Q.B. 144, the court allowed both employers' appeals and set aside the orders for disclosure made or upheld by the Employment Appeal Tribunal.

3. Employment Appeal Tribunal: In Mrs Nassé's case, it upheld the industrial tribunal's disclosure order. In Mr Vyas's case, it reversed the refusal of disclosure and ordered inspection, considering itself constrained by the earlier decision in Mrs Nassé's case.

4. Industrial tribunals: Mrs Nassé's tribunal ordered disclosure without inspecting the confidential documents. Mr Vyas's tribunal chairman refused his application for disclosure.