CD v Revenue and Customs Comrs

Case-management decisions are interlocutory and attract a wide margin of judgment. An appellate tribunal may interfere only for a clear error of approach or law. A later judge may revisit an earlier case-management decision where it was expressly premature and therefore not a concluded determination. In national-security proceedings, decisions concerning privacy and closed material must be kept under review, and good reason for departure may arise more readily than in ordinary case management. Under Rule 54 of the Employment Tribunal Rules 2004, an Employment Judge may inspect sensitive material in closed session to decide whether it should subsequently be heard in closed session, provided the statutory condition of expediency in the interests of national security is satisfied.

The appellant brought three linked employment claims against HM Revenue and Customs concerning security clearance, alleged discrimination and victimisation, and dismissal. In relation to the first claim, Employment Judge Pearl made an order under Rule 54 of the Employment Tribunal Rules 2004 for private hearings and exclusion from hearings involving national-security evidence.

After the second and third claims were issued, Employment Judge Lewzey declined to extend the order generally, but made provision for closed material from the first claim which also applied to the later claims. She considered it premature to decide whether other material specific to those claims should be heard in private.

Employment Judge Potter later permitted limited closed hearings so that the Tribunal and the special advocate could examine documents and determine whether they justified further closed treatment. The appeal challenged both the revisiting of Judge Lewzey’s decision and the procedure adopted.

1. Appeal dismissed. No error of law was established in Judge Potter’s decision. Case-management decisions involve discretion and, particularly at a preliminary stage, attract wide latitude. An appellate tribunal cannot intervene merely because it would have made a different order; a clear error of approach or law is required.

2. Judge Lewzey had not finally determined whether material specific to the second and third claims should be considered in closed session. Her express conclusion that an extension was premature meant that the issue remained open for determination when sufficient information became available. Judge Potter was therefore free to decide the issue. The principles discussed in Goldman Sachs Services Ltd v Montali [2002] ICR 1251 and Farooq v Commissioner of Police of the Metropolis, UKEAT/0542/07, applied to concluded case-management decisions, not to a decision that the time for determination had not arrived.

3. The fact that the material was already held by the Respondent did not make its later consideration abusive. In a national-security context, access may properly be restricted within an organisation and released cautiously to legal representatives. If necessary, the availability of the material to the Respondent’s representatives for the first time at the later hearing could itself constitute a material change of circumstance.

4. Rule 54(2) gave an Employment Judge power to do what a Minister could direct under Rule 54(1), subject to the condition that the Judge considered it expedient in the interests of national security. That judgment could properly include conducting a short closed hearing to inspect material and decide whether it genuinely justified later consideration in closed proceedings. A contrary construction would make the power exceptionally difficult to exercise and would undermine the breadth of the statutory language.

5. The express provision in Rule 94(3) of the Employment Tribunal Rules 2013 removed doubt for the future but did not show that the earlier Rules contained a legal lacuna.

• Employment Appeal Tribunal: Appeal against Employment Judge Potter’s case-management decision dismissed. Both grounds failed.
• Employment Tribunal: Employment Judge Potter permitted limited closed hearings to inspect sensitive documents and hear submissions on their relevance.
• Employment Tribunal: Employment Judge Lewzey had refused to extend the existing Rule 54 order generally to the second and third claims, holding that such an extension was premature.