Compass Group Plc & Anor v Guardian News and Media Ltd & Anor

Under Employment Tribunal Rules of Procedure, Rule 44, a witness statement is available for public inspection if it stands as evidence in chief. Inspection is excluded only where the Tribunal has decided that the whole statement, or the relevant part, is not admitted in evidence.

Merely submitting a statement to the Tribunal, or deciding not to consider parts of it for a particular issue, does not necessarily amount to a decision not to admit those parts. No formal written or sealed order is required, but the Tribunal must have made such a decision. Where its earlier approach is unclear, the question should be redetermined.

Mr Pabani brought Employment Tribunal claims for unfair dismissal and automatic unfair dismissal for protected disclosures against Compass Group plc and ESS Support Services LLP. At a preliminary hearing, the Tribunal confined itself to employment-status and territorial-jurisdiction issues. It considered only excised portions of Mr Pabani’s detailed witness statement.

A journalist for the Guardian sought inspection of the whole statement under Rule 44. After reconsideration, the Employment Judge directed disclosure on the basis that the entire statement had been submitted in evidence. The appellants contended that submission was not the same as admission in evidence and that the excluded passages had not been admitted. The central issue was whether the Tribunal had applied the correct Rule 44 test.

1. Appeal allowed and remitted. The Employment Judge’s letter disclosed a possible error of law because it treated, or may have treated, the fact that the whole statement had been submitted as sufficient to establish that it had been admitted in evidence.

2. Rule 44 of the Employment Tribunal Rules of Procedure makes a witness statement standing as evidence in chief available for public inspection. The relevant exception is engaged where the Tribunal decides that all or part of the statement is not to be admitted in evidence. A statement may be submitted to the Tribunal but ruled inadmissible in whole or in part; submission and admission are therefore distinct.

3. The available material did not establish whether, at the preliminary hearing, the Employment Judge had decided that the excised passages were not admitted, or had merely decided not to consider their merits. The latter course would not prevent inspection under Rule 44. The possibility that the Judge used material from the excised passages in his reasons reinforced the uncertainty.

4. A formal written, sealed order or written decision was unnecessary. It was sufficient that the Tribunal had made a decision that the relevant passages were not admitted. If, on redetermination, the Employment Judge concluded that he had made that decision, Rule 44 required that those passages not be available for inspection. If he had merely put the merits aside, Rule 44 did not permit their exclusion from inspection.

5. The parties, including the Guardian, were permitted to make written representations within 21 days. The Employment Judge was directed to redetermine the inspection question promptly.

• Employment Appeal Tribunal: Appeal allowed and the Rule 44 inspection question remitted to Employment Judge Fowell for redetermination.
• Employment Tribunal: At a preliminary hearing, the Tribunal determined employment-status and territorial-jurisdiction issues and later directed provision of the full witness statements to meet the Guardian’s request for inspection. No citation for that decision is stated in the judgment.