Williamson v The Chief Constable of The Greater Manchester Police & Anor

An employment tribunal has a broad discretion to exclude evidence obtained through covert recording of private deliberations in disciplinary or capability proceedings. Confidentiality may justify exclusion where participants reasonably believed the discussion was private, particularly when the recording is neither the only evidence nor incontrovertible evidence of discrimination. A discrimination claim does not displace the ordinary principles governing relevance, confidentiality and fair disposal. An appellate tribunal should interfere only where the decision falls outside the generous ambit of reasonable disagreement.

The appellant, a probationary police constable diagnosed with depression, brought disability discrimination proceedings under the Disability Discrimination Act 1995. During a capability meeting under step 5 of regulation 13 of the Police Regulations 2003, the appellant and his representative left while the panel deliberated. The appellant’s mobile telephone recorded parts of the private discussion.

At a pre-hearing review, the Employment Judge excluded the recording and transcript. The appellant appealed, alleging an incorrect relevance test, misapplication of Chairman and Governors of Amwell View School v Dogherty, and perversity.

1. Appeal dismissed. The Employment Judge exercised a judicial discretion under rule 14(2) of the Employment Tribunals Rules of Procedure 2004. The discrimination context did not displace the ordinary principles governing relevance, confidentiality and fair disposal.
2. The appellate test was whether the decision exceeded the generous ambit within which reasonable disagreement was possible. The Employment Judge had read the transcript and listened to relevant parts of the recording. His conclusion that the material was unlikely to assist the claim, and that exclusion caused no prejudice, was open to him.
3. Chairman and Governors of Amwell View School v Dogherty was treated as correctly stating the law. Confidentiality protects full and frank discussion by adjudicators and avoids satellite litigation. Its observation that the balance might differ where a discrimination claim involved no reasons and the only evidence was incontrovertible evidence of discrimination was expressly obiter and did not apply here.
4. The principles in Nasse v Science Research Council and CIBC v Beck were applied. Relevance alone was insufficient, while confidentiality alone was not determinative. The high threshold for perversity identified in Yeboah v Crofton was not overcome.
5. Legal advice privilege was not determined. The EAT observed that admissibility disputes are generally better resolved at the substantive hearing than at a separate pre-hearing review.

• Employment Appeal Tribunal: Appeal from the Employment Judge’s judgment at Manchester on 3 July 2009 dismissed. The exclusion of the covert recording and transcript was upheld.