British Aerospace plc v Green

Discovery in unfair redundancy selection proceedings is confined to documents relevant to an issue already raised and necessary for fair disposal at the proceedings’ current stage or for saving costs. It cannot be ordered so that an applicant may discover whether an allegation can be made.

A graded selection system must be inherently fair and fairly administered, but a tribunal should avoid an over-minute reassessment of individual markings. Assessment forms concerning retained employees will ordinarily be relevant only in rare and exceptional circumstances. An applicant seeking them must identify with sufficient particularity how the selection system was allegedly applied unfairly.

Following a genuine redundancy exercise, the employer dismissed 530 employees from a workforce of 7,000 by ranking assessments made under common criteria. Of those dismissed, 234 brought unfair dismissal applications. The parties agreed that representative cases should be selected.

The Industrial Tribunal chairman ordered disclosure of the assessment forms of retained employees. The Employment Appeal Tribunal overturned that order by a majority, holding that no sufficiently defined issue established their relevance. The employees appealed, seeking restoration of the disclosure order.

The central issue was whether disclosure of the retained assessments was necessary and relevant before the applicants had identified with particularity any alleged unfairness in the application of the selection system.

1. Appeal dismissed unanimously. Waite and Millett LJJ delivered reasoned judgments. Stuart-Smith LJ agreed with both.

2. Per Waite LJ, redundancy selection is fair where the employer adopts a fair and reasonable system and applies it fairly and reasonably between employees. The tribunal must determine objectively whether the system and its application fall within the range of reasonable responses. A marking system does not make selection automatically fair, but its operation should not be subjected to officious or over-minute scrutiny. Excessive scrutiny risks undermining workable selection systems and causing proceedings to become hopelessly protracted.

3. Per Waite LJ, discovery in the informal tribunal procedure should be directed sparingly and, where appropriate, in successive tranches. Rule 4(1)(a) of the 1993 Rules, incorporating the powers in the County Court Rules, required the chairman to ask what discovery was necessary at the proceedings’ current stage. No specific challenge to the application of the marking system had been formulated. The retained assessments were therefore irrelevant to the immediate task of choosing sample cases, and disclosure would have permitted an impermissible search for possible allegations.

4. Per Millett LJ, a party seeking discovery must identify the respect in which the process was allegedly applied unfairly with enough particularity to demonstrate the relevance of the requested material. Discovery is available to resolve an existing issue, not to find out whether an issue can be raised. Sample cases should represent disputed issues common to multiple applications. The contention that further discovery was required to select them demonstrated that the applicants sought material from which to formulate allegations.

5. Per Millett and Stuart-Smith LJJ, retained employees’ assessment forms will be relevant only in rare and exceptional circumstances. The tribunal decides whether the applicant was unfairly dismissed, not whether another employee might fairly have been dismissed instead. The tribunal may not conduct its own reassessment of the workforce. Ordinarily, an employer need only establish that it devised a proper selection system and administered it fairly.

6. Confidentiality did not arise for decision because the documents were not discoverable on grounds of relevance and policy. Waite LJ observed that, where confidentiality does arise, it must be assessed contextually under the guidelines in Science Research Council v Nasse [1980] AC 1028.

1. Court of Appeal: Dismissed the employees’ appeal unanimously and affirmed the Employment Appeal Tribunal’s order overturning disclosure.

2. Employment Appeal Tribunal: By a majority, allowed the employer’s appeal and overturned the Industrial Tribunal chairman’s order for disclosure of retained employees’ assessment forms.

3. Industrial Tribunal: The chairman ordered inspection of the assessment forms of employees who had been retained within the relevant selection groups.