Appeal No.	 EAT/216/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 February 1998

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR E HAMMOND OBE
MR B M WARMAN

MR N RAFIQ	APPELLANT

NATIONAL CRIMINAL INTELLIGENCE SERVICE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

INTERLOCUTORY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondents	MR B CARR
(of Counsel)
The Treasury Solicitor
Room 544
Queen Anne's Chambers
28 Broadway
London SW1H 9JS	

	MR JUSTICE MORISON (PRESIDENT):     This is an appeal which relates to an interlocutory matter in connection with Mr Rafiq’s complaint of discrimination by the National Criminal Intelligence Service against him, in relation to his application for employment by them.

	Mr Rafiq filled in an application form but was not short-listed for an interview.  He says that the reason why he was treated in this way was because of his racial origin which is, as I understand it, from Pakistan.

	He served a Race Relations Questionnaire in accordance with the statutory procedure, and has been seeking from the National Criminal Intelligence Service the application forms of other applicants who were short-listed for interview so that he can invite the Industrial Tribunal, in due time, to draw inferences from the primary facts that the reason why he was not short-listed was not because, as the Respondents allege, he failed to fulfil the minimum criteria required, but rather because of his racial origin.

	In the course of the discovery process of these application forms, which initially the Respondents appeared willing to provide and then may have acted somewhat inconsistently, the documents when disclosed show that a number of passages have been blacked out.  

	The exact sequence of orders made by the Chairman does not require analysis because it seems to us that the orders made by the Tribunal are valid and legitimate.  As a result of their latest order the Respondents were permitted to carry this blacking-out and did so.

	The passages which have been blacked-out are of two sorts.  First, the names and addresses of the applicants themselves and, in certain cases, of their referees and second, information on the application form which relates to career history and, in the case of those currently employed with the Service, precisely what their job activities are.  Therefore, part of their work experience has been concealed.

	The reason why that has been done is because it is the view of the National Criminal Intelligence Service that some of the information contained in these forms is of a sensitive nature revealing what the individual, who is unidentified, was doing and revealing therefore, something of the nature of the activities which are carried out by that service.  It is their belief that it would be inappropriate to disclose that information unless it became essential for it to be disclosed for the doing of justice to Mr Rafiq’s claim.

	The position the Service have adopted is that, at the hearing of the Industrial Tribunal which is due to start on Monday, they will have available the original documentation without the blankings on them and that Mr Rafiq, if he wishes, can invite the Chairman to look at those documents with a view to the Chairman alone assessing whether the Service have, in some way, improperly excluded information.

	Mr Rafiq does not mind obviously, about the names and addresses of the individuals.  It is only the second category of information that he is concerned about.  What he says is that the non-revealing of this information might hinder the Industrial Tribunal in its assessment of the circumstances giving rise to his non-shortlisting.

	It seems to us that the way the Service have reacted in this case and the orders made by the Industrial Tribunal has everything in its favour.  Mr Rafiq will have the protection of knowing that a legally qualified Chairman will, if the circumstances are right, look at the documents and form his own opinion about whether the information should be disclosed or not.  He is not, therefore, by virtue of the order made, precluded from that happening.  It seems to us that this is a commonplace situation in an area of sensitivity and we have no doubt that the Industrial Tribunal has arrived at a sensible conclusion.

	We are not entirely clear as to why Mr Rafiq is not content with this position.  It appears that he is of the view that, in relation to pages 37, 37b, 53, 55, 59 and 62, some other body than the Industrial Tribunal should look at the original documents and, itself, make a determination as to whether the material should be disclosed.

	We think that that is a misconceived view because it is obvious, as it seems to us, that it is the fact finding Tribunal who are best able to assess the relevance, if any, of the blacked-out material to Mr Rafiq’s claim and it is the Chairman therefore, alone, who is going to be able to make a fair determination should the issue arise.

	Accordingly, we are quite satisfied that this appeal has no merit and must be dismissed.