Canadian Imperial Bank of Commerce v Beck

In discrimination proceedings, disclosure should be ordered only where it is necessary for fairly disposing of the proceedings. Relevance is a factor, but it is insufficient by itself. Confidentiality does not confer immunity on documents that are necessary for a fair disposal. Fishing expeditions remain impermissible. An appellate court may correct an employment tribunal’s discretionary case-management decision where it is plainly wrong or exceeds the proper ambit of reasonable disagreement. Where a pleaded allegation of a general discriminatory policy is supported by evidence, correspondence among senior executives may be necessary evidence. Retrieval difficulty, expense and document volume arising from an employer’s archiving arrangements do not, without more, justify refusing necessary disclosure.

Mr Beck brought direct and indirect race-discrimination claims against his former employer after his employment ended by reason of redundancy. He sought disclosure of documents concerning another employee’s grievance and correspondence between senior managers about guarantees or redeployment opportunities for employees. The Employment Tribunal refused disclosure. The Employment Appeal Tribunal allowed Mr Beck’s appeal and ordered specific disclosure. The Bank appealed, challenging the EAT’s interference with the ET’s case-management discretion and arguing that the documents were irrelevant, confidential and disproportionate to retrieve. The central issues were whether the ET had erred in law and whether the EAT was right to order disclosure.

1. Disposition. The Court granted permission to appeal but dismissed the Bank’s appeal. The EAT was entitled to correct the ET’s refusal of disclosure.
2. Applicable test. The governing test was whether disclosure was necessary for fairly disposing of the proceedings, as stated in Science Research Council v Nasse [1979] ICR 921. Relevance was relevant but not sufficient. Confidentiality did not itself prevent disclosure, and a speculative fishing expedition was impermissible.
3. Appellate intervention. The principles in G v G [1985] 1 WLR 647, including the standard expressed by Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343, applied to an appeal from an employment tribunal. A broad case-management discretion and the usual deference owed to it did not prevent correction of an error of law. The ET had apparently considered relevance alone and was therefore plainly wrong.
4. Application. Mr Beck’s allegation was of a general Bank-wide policy of treating Canadian-connected employees more favourably. It was supported by an unsigned statement from a former senior employee and an email arising from an investigation into another employee’s grievance. Communications between senior executives were likely to reveal either the existence or absence of such a policy. The request was therefore not a fishing expedition. Noorani v Merseyside TEC Ltd [1999] IRLR 184 concerned a proper exercise of discretion in a different context and did not govern this appeal.
5. Practical objections. The Bank’s asserted difficulties in restoring mailboxes, searching, reviewing and redacting material did not outweigh necessary disclosure. The employer’s chosen method of retaining records should not disadvantage the claimant. The parties were encouraged to explore practical arrangements for facilitating disclosure. The claimant’s earlier willingness to proceed without disclosure was a pragmatic litigation decision and carried little weight.

• Court of Appeal (Civil Division). Permission to appeal was granted and the Bank’s appeal against the EAT’s disclosure order was dismissed.
• Employment Appeal Tribunal. Allowed Mr Beck’s appeal from the ET and ordered specific disclosure.
• Employment Tribunal. Refused Mr Beck’s application for disclosure.