Office of Gas and Electricity Markets v Pytel

• Jurisdiction: Ireland
• Neutral Citation: UKEAT/44/17
• Court: Labour Court (Ireland)
• Year: 2018
• Date: 2018

Employment Appeal Tribunal Office of Gas and Electricity Markets v Pytel UKEAT/44/17 2018 Oct 10; Dec 10 Elisabeth Laing J

Human rights - Fair hearing - Disclosure - Application for disclosure of documents in whistleblowing claim against utilities regulator - Statutory provision prohibiting disclosure - Prohibition incompatible with claimant’s right to fair hearing - Whether provision capable of being read so as to be compatible by inserting new paragraph into list of exceptions - Employment Rights Act 1996 (c 18), s 47B (as inserted by Public Interest Disclosure Act 1998 (c 23), s 2) - Human Rights Act 1998 (c 42), s 3, Sch 1, Pt I, art 6 - Utilities Act 2000 (c 27), s 105

The claimant was employed by the executive arm of the Gas and Electricity Markets Authority, which regulated markets in the gas and electricity industries. He made a complaint to an employment tribunal that, contrary to section 47B of the Employment Rights Act 1996^F1, he had been subjected to a number of detriments for making protected disclosures concerning arrangements for the public procurement of smart meters. His application to the employment tribunal for an order requiring the employer to disclose documents relevant to his claim was resisted on the ground that such disclosure was prohibited by section 105(1) of the Utilities Act 2000^F2. An employment judge decided that the restriction on disclosure of information in section 105(1) applied to the requested documents, since none of the numerous exceptions listed in section 105(6) were relevant, and that such restriction infringed the claimant’s right to a fair hearing under article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. She went on to decide, applying section 3 of the Human Rights Act 1998^F3, that to make section 105 compliant with the claimant’s rights under article 6 a new paragraph (z) should be read into section 105(6) of the 2000 Act to add a further exception for litigation concerning the protection of whistleblowers under Parts IVA and V of the 1996 Act.

On the employer’s appeal, in which both parties accepted that the claimant’s protected disclosures came within the prohibition on disclosure in section 105(1) of the 2000 Act and that section 105(1) was incompatible with the claimant’s rights under article 6 of the Convention—

Held, allowing the appeal, that the court’s duty under section 3 of the Human Rights Act 1998 was to read and give effect to legislation in a way compatible with Convention rights, but only in so far as it was possible to do so; that the employment judge had misconstrued section 3 by asserting that she had a duty to read and give effect to legislation in a way that was compatible with the claimant’s Convention rights, instead of considering whether or not it was possible to do so and, if not, whether the only available option would have been a declaration of incompatibility, even though the tribunal did not itself have power to make one; that, in considering whether it was possible to read a provision compatibly by amending it, there were two relevant factors, namely, whether a proposed amendment was contrary to Parliament’s intention and the ramifications of such an amendment; that, given that section 105 of the Utilities Act 2000 was part of an intricate regulatory regime affecting commercial activity, which provided carefully crafted exceptions to the prohibition on disclosure, and gave the Secretary of State power to amend section 105(6), the addition of a new “paragraph (z)” in section 105(6) was contradicted by, inter alia, the necessary implication that it had been omitted deliberately from the exceptions in that subsection and by the fact that the court was not equipped to understand the effect of such a piecemeal amendment of one provision in an intricate scheme; and that, accordingly, it was not possible to give effect to section 105 so as to make it compatible with the claimant’s Convention rights by reading in a further exception for litigation concerning the protection of whistleblowers under Parts IVA and V of the Employment Rights Act 1996 (post, paras 63, 64, 69, 71, 76, 78, 83, 85, 91, 97).

The following cases are referred to in the judgment:

EBR Attridge llp (formerly Attridge Law) v Coleman [2010] ICR 242, EAT

Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27; [1999] 3 WLR 1113; [1999] 4 All ER 705, HL(E)

Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557; [2004] 3 WLR 113; [2004] 3 All ER 411, HL(E)

McDonald v McDonald (Secretary of State for Communities and Local Government intervening) [2016] UKSC 28; [2017] AC 273; [2016] 3 WLR 45; [2017] 1 All ER 961, SC(E)

Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89) EU:C:1990:395; [1990] ECR I-4135, ECJ

Pepper v Hart [1993] ICR 291; [1993] AC 593; [1992] 3 WLR 1032; [1993] 1 All ER 42, HL(E)

Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595; [2002] QB 48; [2001] 3 WLR 183; [2001] 4 All ER 604, CA

R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45; [2001] 2 WLR 1546; [2001] 3 All ER 1, HL(E)

R v Lambert [2001] UKHL 37; [2002] 2 AC 545; [2001] 3 WLR 206; [2001] 3 All ER 577; [2002] 1 All ER 2, HL(E)

R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46; [2003] 1 AC 837; [2002] 3 WLR 1800; [2002] 4 All ER 1089, HL(E)

Rowell v Pratt [1938] AC 101; [1937] 3 All ER 660, HL(E)

Rowstock Ltd v Jessemey [2014] EWCA Civ 185; [2014] ICR 550; [2014] 1 WLR 3615; [2014] 3 All ER 409, CA

S (Minors) (Care Order: Implementation of Care Plan), In re [2002] UKHL 10; [2002] 2 AC 291; [2002] 2 WLR 720; [2002] 2 All ER 192, HL(E)

Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 AC 264; [2004] 3 WLR 976; [2005] 1 All ER 237, HL(E)

Wandsworth London Borough Council v Vining [2017] EWCA Civ 1092; [2018] ICR 499, CA

No additional cases were cited in argument.

APPEAL from an employment judge sitting at London Central

By a decision sent to the parties on 9 January 2017, the employment judge ordered the respondent Office of Gas and Electricity Markets (“Ofgem”) to disclose documents relevant to a claim of whistleblowing detriment by the claimant, Mr G Pytel, on the ground that a conforming interpretation of section 105 of the Utilities Act 2000 was permissible under section 3 of the Human Rights Act 1998 in order to give effect to the claimant’s right to a fair hearing in article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, by inserting a new paragraph into section 105(6) as an exception to the restriction on disclosure in section 105(1). The respondent appealed on the ground that the employment judge had misconstrued section 3 of the 1998 Act by asserting that she had a duty to read the section in a way compatible with Convention rights rather than only so far as it was possible to do so.

The facts are stated in the judgment, post, paras 5–28.

Diya Sen Gupta (instructed by Burges Salmon llp, Bristol) for Ofgem.

Paul Michell and Sheryn Omeri (instructed by Bindmans llp) for the claimant.

The court took time for consideration.

10 December 2018. ELISABETH LAING J handed down the following judgment.

Introduction

1 This is an appeal from a decision of the employment tribunal sitting at London Central and sent to the parties on 9 January 2017. The employment tribunal consisted of Employment Judge Lewzey (“the employment judge”). Paragraph references are to the tribunal’s judgment, unless I say otherwise.

2 At the hearing of the appeal, the claimant (the respondent to the appeal) was represented by Mr Michell, who also represented the claimant at the employment tribunal hearing. His junior, Ms Omeri, did not represent the claimant at the tribunal hearing; his junior at the tribunal hearing was Miss Barrett. She was also the co-author of the claimant’s skeleton argument. The respondent at the tribunal, the appellant on the appeal (the Office of Gas and Electricity Markets, “Ofgem”), was represented by Miss Sen Gupta. I thank counsel for their written and oral submissions. I should mention that the author of Ofgem’s primary skeleton argument for this appeal was Mr Whitcombe. I gather that after he drafted that document he left practice to become an employment judge in Scotland. He represented, the respondent at the tribunal hearing.

3 The hearing of the appeal was initially listed as a private hearing, as a result of an earlier order of the Employment Appeal Tribunal. Counsel agreed that, in the light of the issues on the appeal, there was no justification for such an order in relation to the hearing on 10 October 2018. I revoked it for the purposes of that hearing.

The position of the Department for Business, Enterprise and Industrial Strategy

4 The Department for Business, Enterprise and Industrial Strategy (“BEIS”) is the sponsoring department for the legislation which is the subject of this appeal. BEIS has been aware of this appeal for some time; an official came to the hearing in 2017, which was adjourned part-heard. I consider that it should have been clear to BEIS that this appeal might very well require the Employment Appeal Tribunal to decide whether or not the employment tribunal was right to re-draft section 105 of the Utilities Act 2000 in reliance on section 3 of the Human Rights Act 1998. BEIS has not, however, at any stage, asked to be joined as a party to this appeal. An official from BEIS attended at the start of the hearing on 10 October. I asked him what his department’s position was, and whether he had instructions to apply for BEIS to be joined, or to ask for an adjournment. He did not. He told me that BEIS had only recently been told that Ofgem was abandoning its third ground of appeal (a challenge to the employment judge’s decision that section 105 breached the claimant’s Convention rights); but I consider that it must have been obvious for a long time that the section 3 issue was likely to be a live issue in this appeal. I do not consider, in the...