Jones v Standard Life Employee Services Ltd

An appellate court will rarely interfere with an Employment Judge’s procedural discretion. Intervention requires an error of law, assessed only by reference to the material that was before the Employment Judge when the decision was made.

Disclosure requires the applicant to show that the documents are necessary in the interests of justice. A tribunal may refuse a late, broad and insufficiently targeted request where relevance and necessity have not been demonstrated. A procedural time provision does not create a general entitlement to make applications up to ten days before a hearing.

The claimant resigned from his employment and alleged constructive unfair dismissal and disability discrimination. Shortly before a five-day Employment Tribunal hearing, he sought disclosure of four broad categories of documents, including complaint checklists, printing records and email correspondence involving his line manager.

Employment Judge Macleod refused the application on the grounds that it was late and that the documents’ relevance to the pleaded claims was unclear. The claimant appealed, contending that the Judge had failed to take relevant matters into account and had acted perversely. The central issue was whether the refusal of disclosure disclosed an error of law in the exercise of procedural discretion.

1. Appeal dismissed. The Employment Judge was entitled to refuse the disclosure application. The Employment Appeal Tribunal’s function was not to decide what order it would itself have made, but to determine whether the Judge had made an error of law on the material then before him.

2. Appeals from discretionary procedural orders rarely succeed. Such orders permit a wide range of reasonable responses, and appellate intervention is justified only by legal error. Later material or arguments which might have led the Employment Judge to a different decision could not establish error in the original decision.

3. The governing disclosure inquiry was whether production was necessary in the interests of justice. The claimant’s request was made shortly before the listed hearing, despite earlier case-management hearings and knowledge of the hearing date. The Judge could properly treat its timing as relevant to the fair and expeditious conduct of proceedings.

4. Rule 11(2) did not mean that parties generally could make applications at any time up to ten days before a hearing. Its wording concerned the date on which an application would be considered. In any event, timeliness had to be assessed in context. Urgent developments might justify a late application, but none had been shown here.

5. The Judge was also entitled to find that relevance and necessity had not been sufficiently demonstrated. The email request was wide and untargeted. It had not identified a particular correspondence chain, period or issue demonstrating why disclosure was required. Potential relevance, or the possibility that documents might later assist, did not shift the burden from the applicant to establish necessity.

6. The claimant could make a later, properly focused application if necessary. The refusal of this broad application did not conclusively determine any such targeted request.

• Employment Appeal Tribunal: Appeal dismissed; the refusal of disclosure by Employment Judge Macleod was upheld.
• Employment Tribunal: On 30 January 2013, the Employment Judge refused a late application for disclosure because its relevance was unclear and granting it was not in the interests of justice.