Essex County Council v Jarrett (Practice and Procedure)

Disclosure in remedy proceedings is required where it is necessary for the fair disposal of the proceedings. Relevance alone does not suffice, but information may be necessary where it bears on a substantial future-loss claim and its production is proportionate.

In assessing future loss, an Employment Tribunal must assess the chance that events would have occurred absent the wrong. A claimant’s stated intention to remain in work is important but not conclusive. Pension income from other sources may be relevant both to the likelihood of retirement and to the net-income calculation, although it is not credited against compensation merely because it is received.

The Claimant had succeeded in claims of discrimination and automatic unfair dismissal. Remedy was adjourned. She claimed future earnings and pension loss on the basis that, but for the wrong, she would have worked until age 70.

The employer sought disclosure of her pension entitlements from previous employment. Employment Judge Gilbert refused the application by adopting the Claimant’s written reasons, which treated the information as irrelevant to her asserted intention to continue working.

The employer appealed the case-management decision. The central issue was whether the requested pension information was necessary and proportionate disclosure for the fair determination of future loss.

1. Appeal allowed. The Employment Judge’s refusal of disclosure was flawed. Although brief reasons for a procedural decision may properly incorporate another document, the incorporated reasons did not withstand scrutiny.

2. The applicable test was whether disclosure was necessary for fairly disposing of the proceedings. Relevance is a factor but is insufficient by itself. The Tribunal must also consider necessity, proportionality and the avoidance of impermissible fishing expeditions.

3. The Claimant’s intention to work until 70 was material but did not determine the issue. Future-loss assessment requires a prediction of what would probably have happened had the wrong not occurred. It is an assessment of chance, taking account of intention, health, work history, character and the surrounding circumstances.

4. Other pension income was relevant to that assessment because available financial resources might affect whether the Claimant would have remained in employment. It was also relevant to calculating a claim advanced by reference to net earnings, since other income could affect the applicable marginal tax rate.

5. The pension income was not deductible from compensation merely because it would be received irrespective of continued employment. That collateral-benefit point did not answer whether the information was relevant and necessary for the two identified purposes.

6. Given the size and nature of the claim, and the limited request for information already known to the Claimant, disclosure was proportionate and necessary. The EAT exercised its own discretion and ordered disclosure. The information was one factor only and was not determinative of whether the Claimant would have worked until 70.

• Employment Appeal Tribunal: Allowed the employer’s appeal against Employment Judge Gilbert’s case-management refusal of disclosure and substituted an order requiring disclosure of pension information.
• Employment Tribunal at Colchester: Had upheld the Claimant’s discrimination and automatic unfair-dismissal claims; remedy was adjourned. The judgment records no citation for that decision.