Barracks v Chief Superintendent Coles & Ors

Security and intelligence considerations do not, without more, make an employment claim an abuse of process. Where evidence relevant to a race-discrimination claim can be heard without creating security or intelligence difficulties, the claim should proceed to an evidential hearing. Questions concerning race discrimination and the right to a full and fair trial should be addressed when they become necessary. If further inquiry into security vetting is then required, those questions may be considered at that stage. An appeal may therefore be dismissed while the claim is remitted for determination by the Employment Tribunal.

The appellant appealed from rulings made by the Employment Appeal Tribunal in employment proceedings involving allegations of race discrimination and security and intelligence considerations. The appeal concerned, among other matters, the effect of unless orders, an alleged abuse of process, and issues arising under European Community and Convention Rights law.

The Court of Appeal considered whether those issues should be determined before the Employment Tribunal had heard the evidence, or whether the claim could proceed to an evidential hearing. The judgment also determined the appropriate consequential order and costs.

The Court of Appeal dismissed the appeal and made the agreed consequential orders. The case was remitted to the Employment Tribunal, and the trial was directed to take place before a tribunal chaired by a circuit judge.

1. The court did not uphold the unless orders made in the Employment Tribunal. It regarded the circumstances in which they had been made as extraordinary and highly problematic.
2. The Metropolitan Police’s contention that the proceedings as a whole were an abuse of process was held to be hopeless. Security and intelligence considerations did not prevent the claim from proceeding where evidence relevant to the race-discrimination claim could be heard on both sides without creating security or intelligence difficulties.
3. The Employment Tribunal should first hear the evidence capable of being received. If it could determine the claim on that material, it would not be necessary to investigate security vetting further. If it could not do so and further inquiry into security vetting became necessary, the legal questions concerning race discrimination and the right to a full and fair trial should be confronted at that stage, rather than decided prematurely.
4. Although the appeal was dismissed, the court exercised its discretion to make no order as to costs. The respondents’ hopeless abuse-of-process contention was a material reason for departing from the ordinary costs outcome. The Secretary of State for the Home Department, as intervener, was neither awarded costs nor made liable for any other party’s costs.

• Court of Appeal (Civil Division) — The appeal was dismissed: [2006] EWCA Civ 1155. The case was remitted to the Employment Tribunal for trial before a tribunal chaired by a circuit judge. There was no order as to costs.
• Employment Appeal Tribunal — The judgment describes rulings made by the Employment Appeal Tribunal, but gives no citation or formal outcome for that decision.