Pinnock v Birmingham City Council & Anor

Documents arising after the events in issue are not irrelevant merely because of their date. Their relevance must be assessed by reference to whether they may support or undermine a party’s case.

An Employment Tribunal has no function to give advisory permission for a party to disclose documents already in that party’s possession. Its disclosure powers mirror those of the County Court.

Under the costs rules, an oral application may fairly be determined without a separately designated costs hearing if the paying party has a fair opportunity to respond. Where a tribunal elects to consider ability to pay, it must make succinct findings on means and explain their effect; it should not criticise a party for failing to provide detailed evidence within an unrealistically short period.

The Claimant appealed from an Employment Tribunal judgment dated 10 October 2012. Her claims for unfair dismissal, disability discrimination, religious discrimination and whistleblowing detriment had been adjourned, and the Tribunal ordered her to pay £4,050 in costs thrown away by the adjournment.

The appeal concerned two disclosure matters and the costs order. One disclosure application sought records of answers given during an investigation into the Claimant’s complaint of malpractice. The other concerned documents in the Claimant’s possession that had been supplied by a former colleague. The central issues were whether the Tribunal had erred in its disclosure rulings and whether it had properly made and quantified the costs order.

1. Appeal allowed in part. The Tribunal erred in treating documents generated by the malpractice investigation as irrelevant because they post-dated the alleged discrimination and dismissal. There is no such legal principle. Post-event documents may still assist in proving or disproving the events in issue. The Appeal Tribunal could not itself determine relevance because it had not seen the material. It therefore set aside that disclosure decision, leaving the Claimant free to renew the application if the underlying proceedings became live again.

2. The appeal concerning the former colleague’s documents was dismissed. The Claimant sought advisory permission for her own disclosure of documents in her possession, given concerns about confidence and data protection. That was outside the Tribunal’s function. Under section 7(3)(e) of the Employment Tribunals Act 1996, its disclosure powers are those of the County Court, whose powers under Part 31 of the Civil Procedure Rules do not include granting such advisory permission.

3. The Tribunal had not erred in deciding that a costs order was appropriate. Rule 38(9) required a fair opportunity to oppose costs, which the Claimant received. The Tribunal was entitled to find that her refusal to exchange a witness statement, despite outstanding disclosure issues, was the real and substantial cause of the adjournment and was unreasonable conduct under rule 40.

4. However, the Tribunal’s treatment of ability to pay was flawed. Having chosen to take means into account under rule 41(2), it should have made findings and explained their effect. It was irrational to criticise the Claimant for not providing extensive financial evidence at such short notice. The costs order was set aside solely on ability to pay and remitted for reconsideration after directions for further information and submissions. The proposed amendment to appeal a later strike-out decision was refused.

• Employment Appeal Tribunal: Allowed the appeal in part: it set aside one disclosure ruling and remitted the ability-to-pay aspect of the costs order; all other grounds were dismissed.
• Employment Tribunal, Birmingham: By judgment dated 10 October 2012, ordered the Claimant to pay £4,050 in costs following an adjournment and rejected the relevant disclosure applications.