The case is De Keyser Ltd. v Miss L Wilson (EAT/1438/00). The offical transcript is not yet available, but should be available soon from the EAT website.
Facts: The Applicant claimed constructive dismissal arising from stress at work. The Respondent instructed a doctor to examine her. The letter of instruction (which, as the EAT takes great pains to point out, was written by an employment consultant and not a solicitor!) was couched in very strong terms, setting out in great detail aspects of the Applicant's private life which the Respondent believed to be the cause of her stress. There was little doubt that the letter contained highly intrusive and sensitive information, but it was common ground that the employer had not been told the information in confidence, nor as part of the discovery process during litigation.
The Applicant objected to the letter, and asked the tribunal to direct that a fresh expert be appointed. The tribunal, of its own motion, called the parties for a hearing as to why the Notice of Appearance should not be struck out. Following the hearing, the tribunal struck out the IT3 on grounds that "the manner in which the proceedings have been conducted on behalf of the Respondent [have] been scandalous and in breach of article 8 (right to respect for private and family life) ECHR and the Human Rights Act 1998".
The Respondent appealed.
Issue: Was the tribunal right in striking out the Notice of Appearance because the Respondent had breached the Applicant's right to respect for her private life, contained in ECHR Art. 8?
Decision: No. Lindsay P. considered that the tribunal was wrong to have struck out the IT3. The following factors were central:
• the letter of instruction was sent a week prior to the Human Rights Act 1998 coming into force;
• it did not contain any information given in confidence, but (although the decision is not entirely clear on this) only information in the public domain;
• the Respondent was not a public authority;
• it was open to the tribunal to direct that another expert be instructed - thus the fact that the doctor might have been irretrevably prejudiced was not fatal;
• most importantly, the tribunal had not expressly considered whether a fair trial of the issues was still possible;
• there was no disobedience to a court order (although the relevance of this to an article 8 argument is not entirely clear);
• the right to respect for privacy is qualified by the right to both parties to have a just trial of the issues between them - and it must be borne in mind that it was the Applicant who invoked the right to such a trial by bringing the claim
Accordingly the EAT re-instated the IT3.
The decision is also important because it gives a 13-point guide to instructing an expert in employment tribunals. They are (summarised):
1. give careful thought as to whether to instruct an expert at all - a prudent party will first explore the need for expert evidence with the tribunal in correspondence or at a directions hearing;
2. the joint instruction of a single expert is the preferred course;
3. if a joint instruction occurs, the parties must agree responsibility for fees/expenses. It is perfectly acceptable to agree to bound by the tribunal's subsequent views;
4. if one side will not agree to share fees/expenses, it is legitimate for the other side to instruct somebody themselves - although the weight may be reduced if they do not send the instruction letter to the other side for comment;
5. if a joint expert is to be used, tribunals may fix a timetable for agreeing the identity of, and instructions to, the expert;
6. letters of instruction should be detailed and set out specific questions;
7. letters of instruction should avoid partisanship and should emphasise the expert's overriding duty to the court;
8. if the identity of a joint expert, or the wording of instructions, cannot be agreed, the tribunal may assist;
9. the tribunal may give directions as to the areas to be covered by expert evidence;
10. where there is no joint expert, the tribunal should specify a timetable for disclosure/exchange of reports;
11. a timetable might provide for the raising of supplementary questions to the expert;
12. the tribunal should encourage 'without prejudice' meetings of separate experts, to narrow the issued and produce Schedules of points of agreement/dispute;
13. if a party fails to follow these guidelines, the tribunal may consider whether there has been unreasonable conduct within the meaning of rule 12 (as to costs).
Comment: This decision demonstrates the robust approach of the EAT to Human Rights points. As expected (by me, anyway!), the impact of the Human Rights Act has not been significant to date in employment disputes. The EAT is making it quite clear that parties should not take technical 'human rights' points, and that the overriding question is whether justice can be done between the parties.
Slightly worryingly, however, the EAT comes very close to suggesting that a person waives his/her right to respect for privacy simply by bringing a claim in which their private life may be relevant.