Baraheni v Royal Berkshire NHS Foundation Trust

An order for electronic disclosure of underlying computer data requires a demonstrated need connected with the fair disposal of the proceedings. A broad request covering a substantial disclosure, unsupported by specific allegations or expert justification, may properly be refused as disproportionate, expensive and of little value. Allegations that documents have been forged or altered are serious and require proper particulars. A renewed application which is materially the same as an earlier refused application may also be refused without error of law.

The claimant brought race-discrimination proceedings against her former employer. After approximately 5,000 pages had been disclosed in paper form, she sought electronic copies and underlying electronic data, including metadata, alleging that some documents had been altered or fabricated.

The application was refused by Employment Judge Hill and renewed unsuccessfully at a case management discussion before Employment Judge Hardwick. The claimant appealed against the refusal. During the appeal, the respondent disclosed metadata relating to an early copy of one disputed document. The issue was whether the Employment Tribunal had erred in law by refusing the claimant’s general application for electronic disclosure.

1. Appeal dismissed. The Employment Tribunal had made no error of law. Its refusal of the application was plainly correct on the way the application had been presented.
2. The relevant question was whether electronic disclosure and inspection were necessary for the fair disposal of the proceedings. In addressing that question, the Tribunal was entitled to have regard to the overriding objective in regulation 3 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.
3. The claimant’s application was wholly unfocused. It sought electronic material underlying the respondent’s entire disclosure, potentially involving a time-consuming and expensive exercise. It was unnecessary, of little value and could not be justified merely by a general allegation that documents had been faked or altered.
4. Where a particular document is said to be false, the proper course is to make a focused application identifying the document, explaining the case of falsity, and specifying the expert evidence said to require inspection of the underlying electronic material. The same approach applies to several identified documents. Generalised allegations of forgery or fraud are inappropriate without proper details.
5. An Employment Judge does not err in law by refusing an application which is materially the same as an earlier application that has already been refused, where no new aspect or change of circumstances is shown.
6. The early copy of the disputed minutes appeared capable of resolving the allegation of late forgery if it established that the document existed by 1 August 2006. Any further challenge to that copy required disclosure of the claimant’s expert report and a focused application to the Employment Tribunal.

• Employment Appeal Tribunal: dismissed the appeal against the Employment Judge’s refusal of electronic disclosure.
• Employment Tribunal: Employment Judge Hill refused the original application on 27 May 2010. Employment Judge Hardwick refused the renewed application at a case management discussion on 18 June 2010, with an order dated 29 June 2010.