Legal Updates

Employment Law – Confidential Evidence – Request for Private Hearing – Unfair Dismissal – Unlawful Deductions from Wages

In the case of Smith v Chelsea Football Club Plc [2008], it was held that the claimant's evidence that was excluded by the judge had been indirectly relevant to the primary issue. Furthermore, no logical distinction could be drawn between the evidence that was excluded and the evidence that was admissible before the tribunal. According to Rule 16(1) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004:

“A hearing or part of one may be conducted in private for the purpose of hearing from any person evidence or representations which in the opinion of the tribunal or chairman is likely to consist of information:

(a) which he could not disclose without contravening a prohibition imposed by or by virtue of any enactment;

(b) which has been communicated to him in confidence, or which he has otherwise obtained in consequence of the confidence placed in him by another person…”

The claimant in this case had an extensive background in sports marketing. He began his association with the respondent football club in September 2003. Subsequent to his association, he brought a number of complaints before the employment tribunal:

Unfair dismissal; and

Unlawful deductions from wages.

He further sought a declaration as to the terms and conditions of his employment with the football club. The club duly admitted the unfair dismissal. Subsequently the football club agreed to pay to the claimant the maximum award available to him for unfair dismissal.

There was, however, an issue in respect of the declaration. The club's solicitors sought a decision, prior to the substantive hearing, in relation to the admissibility of a number of sections of the claimant's witness statement. Furthermore, the admissibility of certain other evidence in relation to his claim for a declaration under s.11 of the Employment Rights Act 1996 was also disputed.

The judge excluded certain evidence. It was held that the claimant's evidence should be heard in private under Rule 16(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

The claimant appealed against this decision on the ground that the judge had failed to give adequate reasons for his decision. The tribunal held as follows:

The appeal tribunal could only interfere with an interim order where there had been an error of law. It was held that on the facts as presented in this case, the evidence that was excluded had been indirectly relevant to the primary issue. Furthermore, there was no logical distinction that could be made between the evidence that was allowed and the evidence that was excluded. However, the appeal tribunal was of the opinion that the judge had been entitled to reach the decision that he had. The nature of certain confidential aspects of the claimant's evidence meant that an order to hear the evidence in private should be made.

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© RT COOPERS, 2009. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.




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