Coles v Barracks (Secretary of State for the Home Department intervening): [2006] EWCA Civ 1041

CA: Sir Anthony Clarke MR, Mummery and Wall LJJ: 31 July 2006

The claimant employee, a black female police officer, was invited to apply for an internal post for which security vetting was required. A white officer was appointed. The first respondent, the head of the department to which the employee had applied, refused to tell her the reason why she had been unsuccessful. The employee instigated the internal complaint procedure but received no explanation for the decision not to appoint her. She brought a claim of race discrimination against the first respondent and the police commissioner. The respondents denied discrimination, stating that the employee had not been appointed because she had failed the vetting check and that they were prohibited by law from explaining why she had failed. At a preliminary hearing the employee sought disclosure of the reason she had not been appointed. The respondents contended that it was an abuse of process for the discrimination claim to be litigated as they were prohibited by law from giving an explanation or even from disclosing the law that prohibited them from explaining the failed vetting. The employment tribunal made an "unless" order requiring disclosure by the respondents of the reasons why the employee was not considered for the post and the legal basis for the claim that they were prohibited from revealing the reasons for her non-selection, failing which their response would be struck out. At the hearing of an appeal by the respondents, a judge at the Employment Appeal Tribunal, sitting alone, held a meeting attended by counsel for the commissioner and by the first respondent only, after which he indicated that he was satisfied that the police were prohibited by law from revealing either the nature of the reasons for the employee's negative vetting or the legal provisions under which that refusal was made, and he allowed the respondents' appeal, set aside the unless order and remitted the matter to the employment tribunal for a hearing on the merits without the disclosure sought by the employee.

The employee appealed.

The Court of Appeal held:
It was wrong in law for the employment tribunal to make the unless order, with which the respondents could not comply without, on their case, breaking the law. The unless order unjustifiably prevented the respondents from defending the discrimination claim in the normal way by adducing evidence in their defence at the substantive hearing, and the proper course was for the tribunal to make a ruling on disclosure if and when the need arose during the substantive hearing. The claimant would not be precluded from arguing issues of fair hearing and effective remedy, which could be decided in full knowledge of the position after all the available evidence had been heard before the employment tribunal

The appeal was dismissed.

Appearances: Karon Monaghan and Tessa Hetherington (Pattinson & Brewer) for the employee; David Pannick QC and Jeremy Johnson (Director of Legal Services, Metropolitan Police) for the respondents; Tim Eicke (Treasury Solicitor) for the Secretary of State for the Home Department as intervener.