Evidential vacuum

Coles v Barracks CA TLR 7 August

A claim by a black woman police officer based on racial discrimination in not having been selected for a post for which she had applied was defended by the police by denying race discrimination and stating that she had not been appointed as a result of a vetting check, not because she was black. In admitting that no explanation had been given for her failing the vetting check, the police stated that they were prohibited by law from providing the explanation to her or to the tribunal. It was that extraordinary feature of the case that gave rise to legal argument on European Community rights and human rights in the tribunal below and in written submissions to the Court of Appeal. It would be quite wrong to adjudicate on Convention and Community law arguments in a vacuum and without reference to the facts of the case. On the facts the arguments might not arise and might prove academic. If they did arise, they had to be addressed in their factual context. It would be contrary to the concept of a fair trial if the court pronounced on the arguments effectively ex-cathedra without reference to the factual context in which they arose. The court should avoid grappling with general issues divorced from factual content. Where at the case-management stage of a race discrimination claim, issues of non-disclosure by the employer claiming legal reasons for not giving an explanation for its decision were raised, the proper course is to proceed to a substantive hearing on the evidence and deal with the non-disclosure issues if they arose at that stage.