Barracks v Coles & Anor

An appellate court should not determine broad Community-law or Convention questions about disclosure restrictions before the substantive evidence is available, particularly where the issues may prove hypothetical. The fairness of a hearing must be assessed in the overall factual context. An employment tribunal should not make an unless order requiring a party to disclose information which, on its case, disclosure would breach the law. Sensitive security material may be withheld, but the tribunal should manage the case so that both parties can present the evidence available and avoidable injustice is minimised. The absence of withheld material does not automatically prevent a meaningful hearing. The statutory burden of proof under the Race Relations Act 1976 remains applicable.

Ms Janet Barracks, a black police officer, brought a claim of direct race discrimination under sections 1(1)(a) and 4 of the Race Relations Act 1976 after she was not selected for a Field Intelligence Officer post within the Metropolitan Police Trident operation. The police said that she had failed a security vetting process and that the law prevented disclosure of the reasons or the legal basis for non-disclosure.

At a case management hearing the employment tribunal made an unless order requiring further particulars and threatening to strike out the response. The Employment Appeal Tribunal, HHJ Ansell sitting alone, allowed the police appeal and remitted the claim for a merits hearing without the requested particulars. The central issues before the Court of Appeal were whether that decision was legally correct and whether the Community-law and Article 6 arguments should be determined before the factual and evidential position was known.

The appeal was dismissed unanimously. The matter was remitted to the employment tribunal for a substantive hearing in accordance with the directions given by the Court of Appeal.

1. Unless order. The employment tribunal had wide case-management discretion, but it erred in law by making an unless order which the police said they could not obey without breaking the law. The order unjustifiably prevented them from defending the discrimination claim by adducing the evidence available to them. The Employment Appeal Tribunal was right to set the order aside.
2. Available evidence and burden of proof. A meaningful hearing could take place without the withheld vetting information. Ms Barracks could give evidence and rely on other material. The police could give evidence about the selection decision, the nature of the post, vetting, and whether race had played any part. The tribunal could draw inferences and apply the two-stage burden under section 54A of the Race Relations Act 1976, recently examined in Igen Ltd v Wong [2005] ICR 931. The absence of the withheld evidence did not dictate either dismissal or success.
3. Timing of legal issues. The court declined to rule on the Community-law and Article 6 arguments before the substantive evidence was heard. General legal issues divorced from their factual context may prove hypothetical and may produce guidance difficult to apply in practice. The court relied on the caution illustrated by R (Burke) v GMC [2005] EWCA Civ 1003 and, by way of emphasis, Wall LJ referred to Re J (a child) (care proceedings: fair trial) [2006] EWCA Civ 545 and Mantovanelli v France [1996] ECHR 21497/93. Article 6 fairness had to be considered in the overall context of the proceedings.
4. Further procedure. The tribunal should use conventional case-management directions, including evidence and disclosure, and determine any specific dispute about non-disclosure when it arose at the substantive hearing. The tribunal was directed to disregard paragraph 29 of the Employment Appeal Tribunal’s judgment. If a disclosure issue under the Regulation of Investigatory Powers Act 2000 arose, the hearing should be chaired by a Circuit Judge capable of receiving material under section 18.

1. Court of Appeal (Civil Division): By judgment dated 21 July 2006, the appeal was dismissed and the matter remitted to the employment tribunal with procedural directions. The court declined to determine the Community-law and Article 6 issues at that stage.
2. Employment Appeal Tribunal: HHJ Ansell, sitting alone, allowed the police appeal on 18 October 2005 and remitted the claim for a substantive hearing without the requested particulars. Permission to appeal was granted on 21 October 2005.
3. Employment tribunal: At a case management hearing, the tribunal made an unless order requiring particulars of the reason for non-selection and the legal basis for the asserted restriction on disclosure.