Plymouth City Council v White

Disclosure requires more than relevance. A document may be ordered only where its disclosure is necessary for the fair disposal of the proceedings. Confidentiality does not itself prevent disclosure, but requires the tribunal to assess the document and consider measures such as redaction.

The proper sequence is to consider relevance, necessity, inspection where disclosure is disputed, and the least intrusive form of disclosure. A tribunal which orders disputed documents without applying that test or examining them errs in law. Its disclosure decision may be set aside and remitted.

The claimant pursued an unfair-dismissal claim against his former employer. At a lengthy telephone case-management discussion, the Employment Judge ordered disclosure of substantial categories of documents sought by the claimant, including material said to be confidential.

The Council appealed the disclosure order. It contended that the Judge had applied relevance alone, had not assessed whether disclosure was necessary for a fair hearing, and had not inspected the disputed documents. The claimant cross-appealed against the refusal to order disclosure of grievance material.

The central issue was the correct approach to disclosure under rule 10(2)(d) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

1. Appeal allowed; cross-appeal dismissed. The disclosure order was set aside because the Employment Judge applied relevance as the governing test. Relevance is necessary, but it is not sufficient. The governing question is whether disclosure is necessary for the fair disposal of the proceedings.

2. Following Science Research Council v Nassé [1980] AC 1028 and the Court of Appeal’s statement in Canadian Imperial Bank of Commerce v Beck, confidentiality alone neither creates immunity from disclosure nor justifies refusal. It is, however, a material consideration when deciding necessity and the appropriate protective terms.

3. The Tribunal set out the required sequence. It must first consider relevance. If relevant, it must decide whether disclosure is necessary for a fair trial. Where disclosure is disputed, particularly on confidentiality grounds, the Judge should inspect the document. If disclosure is necessary, the Judge must consider whether redaction or partial disclosure can protect confidential material. A Judge who has inspected disputed documents should not ordinarily conduct the substantive hearing unless the parties agree.

4. The Judge had not seen the critical documents and the EAT could not determine whether the result was inevitably correct. The exercise of discretion was therefore flawed by the legal error. The disclosure issue was remitted to a different Employment Judge, excluding Judges Carstairs and Roper.

5. The refusal to order grievance material was upheld. The Employment Judge had found that material irrelevant; it could therefore not be necessary for the fair disposal of the claim.

• Employment Appeal Tribunal: allowed the Council’s appeal against the disclosure order, set it aside and remitted the issue to a different Employment Judge; dismissed the claimant’s cross-appeal.
• Employment Tribunal: Employment Judge Carstairs made disclosure directions following a case-management discussion on 2 May 2013. Reasons concerning the appeal and cross-appeal were dated 15 July and 7 August 2013 respectively.