Advisory, Conciliation and Arbitration Service v Woods

Information held by ACAS in connection with an ACAS service is subject to the broad confidentiality prohibition in section 251B of the Trade Union and Labour Relations (Consolidation) Act 1992. The prohibition extends to information obtained during collective as well as individual conciliation and continues to apply when the information is later compiled into an internal investigation report.

An Employment Tribunal is not a “court” for the purposes of section 251B(2)(e). The High Court may nevertheless entertain a freestanding application for an order permitting disclosure. In exercising that discretion, the court must balance the need for fair adjudication against the statutory importance of confidentiality. The precise management of disclosure and confidentiality should ordinarily be left to the Tribunal hearing the substantive claim.

ACAS applied under CPR Part 8 for an order under section 251B(2)(e) of the Trade Union and Labour Relations (Consolidation) Act 1992. The order was sought to permit disclosure in ongoing Employment Tribunal proceedings brought by Mr Woods against ACAS for unfair dismissal.

Mr Woods’ dismissal followed an internal investigation concerning alleged personal conduct and alleged conduct connected with collective conciliations. The investigation report contained information obtained during ACAS collective conciliation work. Both parties accepted that at least some of that material might be relevant to the Tribunal claim, but section 251B(1) appeared to prohibit its disclosure.

The principal issues were whether the information fell within section 251B, whether the Employment Tribunal was a court for the statutory exception concerning court orders, whether the High Court had jurisdiction to entertain the application, and whether an order should be made.

1. Scope of section 251B. Information relating to collective conciliation falls within section 251B(1). The statutory reference to the provision of “a service” by ACAS is unqualified, and includes collective conciliation. Information acquired during that service remains held by ACAS in connection with it, even if later recompiled into an investigation report for a different immediate purpose.
2. The prohibition is potentially very wide. It is not confined to notes recording the stance taken by a relevant person during conciliation. The investigation report therefore contained information which ACAS could not disclose unless one of the statutory exceptions applied.
3. Employment Tribunal not a court for section 251B(2)(e). Although Employment Tribunals have the essential characteristics of courts, the statutory context showed that Parliament distinguished courts from Tribunals. Had Parliament intended an Employment Tribunal order to fall within section 251B(2)(e), it would have said so expressly.
4. Jurisdiction and recipient of order. Section 251B did not restrict an application under section 251B(2)(e) to existing court proceedings. A freestanding CPR Part 8 application was appropriate. The prohibition could also apply to Mr Woods because he obtained the information through his work for ACAS in providing its services.
5. Discretion. The court had to give substantial weight to Parliament’s criminal prohibition and the importance of confidentiality. It also had to consider whether consent or anonymised disclosure could provide an alternative, the consequences of withholding potentially relevant evidence, and whether confidentiality could be protected by the Tribunal’s case-management powers.
6. The order should be made in principle. Without it, the parties and Tribunal might be hampered in fairly presenting and determining the unfair-dismissal claim. The Tribunal should first clarify the issues, identify genuinely relevant material, and then use redactions, private hearings or other measures under Rule 50 as necessary, while giving proper weight to open justice and freedom of expression.

First-instance High Court application concerning disclosure for ongoing Employment Tribunal proceedings. No appeal history was stated in the judgment.