The law says that ACAS (the conciliation service) cannot disclose certain information unless it is to comply with a court order, among other things. In ACAS v Woods, the High Court held that it would issue a court order allowing ACAS to disclose an investigation report which contained allegations about the conduct of a dismissed employee during a collective conciliation process.
Mr Woods was a senior manager who had worked for ACAS for 40 years. After a number of allegations about his personal and professional conduct (in particular allegations relating to a number of collective disputes in which ACAS had conciliated), the agency carried out an investigation.
Although the ensuing report was seen and considered by the dismissing officer at his disciplinary hearing, ACAS claimed that the officer did not rely on any allegations relating to his conduct concerning the collective conciliations. Despite that assertion, the dismissal letter referred to them. Mr Woods then lodged a claim of unfair dismissal relying in part on the references to the collective conciliation conduct allegations in the report.
It seemed to ACAS that it would very likely be required to disclose the information within the investigation report for the purposes of the claim because it was at least potentially relevant to some of the issues raised by Mr Woods. However, because some of it fell within section 251B(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), the agency was prohibited from doing so.
As a result, it asked the High Court to make an Order, pursuant to section 251B(2)(e) TULRCA on the basis that it would help both parties to advance their respective cases, and the tribunal to fairly adjudicate, the unfair dismissal claim.
Under section 251B(1), information held by ACAS cannot be disclosed if it relates to a “worker, an employer of a worker or a trade union” and is “held by ACAS in connection with the provision of a service by ACAS or its officers”.
Section 251B(2)(e) states that the disclosure of information can be allowed if it is to comply with a court order.
High Court decision
The High Court agreed that it would be highly unusual for an investigation report not to be disclosed for the purposes of an unfair dismissal claim. In this case, the approach of the report to the collective conciliation conduct allegations, and the observations made in the dismissal letter about them, would directly relate to the fairness or otherwise of Mr Woods’ dismissal.
The court also agreed that collective conciliation came within the scope of section 251B and was held “in connection” with the provision of that service (although it was included into the investigation report for a different purpose). Accordingly, ACAS could not disclose it unless one or more of the exceptions in section 251B(2) applied.
Noting that the section gives no specific guidance to the court as to the circumstances which it should or should not take into consideration when asked to make an order, the court concluded that it should, in principle, be made for three main reasons.
Firstly, it would ensure that the fair prosecution and adjudication of the unfair dismissal claim was not hampered as a result of (possibly) relevant evidence being withheld from the tribunal. Secondly, it would allow the tribunal to take appropriate steps to ensure that the material presented or referred to at trial was strictly confined to what was relevant to the issues. Thirdly, confidentiality of any material relating to collective conciliations, to which some reference may need to be made, could be duly safeguarded.