Gray v Merrill Lynch, Pierce, Fenner and Smith Ltd (Practice and Procedure: Disclosure)

An Employment Tribunal may order specific disclosure only where the documents are sufficiently relevant and disclosure is necessary for the fair disposal of the proceedings. Its broad case-management discretion commands appellate restraint, but an order may be set aside where the Tribunal has misunderstood the documents sought or failed to address a material issue.

In a claim that redundancy was a sham, the Tribunal may examine the plausibility of the asserted reason. Disclosure remains confined to material bearing on that issue. General performance records were irrelevant where the employer relied on an efficiency-driven headcount review, rather than poor departmental performance. By contrast, documents capable of showing the work performed when the selection pool was defined were relevant; later reallocations did not answer that question.

The Claimant appealed a disclosure case-management order of the London (Central) Employment Tribunal. He claimed ordinary and whistleblowing-related unfair dismissal, together with detriments. The Respondent maintained that he had been selected for redundancy following a headcount review.

The appeal concerned documents about bids in an auction which formed part of an alleged protected disclosure, the asserted redundancy and selection pool, and communications following dismissal. The central question was whether the Tribunal had lawfully refused or inaccurately recorded the requested disclosure orders.

1. Appeal allowed in part. The Employment Appeal Tribunal set aside the refusal of disclosure of final bid letters and bid emails concerning the auction. The Employment Tribunal had treated the documents as non-existent, although bid records did exist. The number and timing of bids were relevant to whether the Claimant reasonably believed that wrongdoing had occurred. Disclosure was necessary for a fair trial and was ordered.

2. The refusal of further disclosure of communications between the Respondent and the client was upheld. The Employment Tribunal had considered evidence of searches already undertaken and was entitled to conclude that no further documents in that category remained to be disclosed.

3. The appeal concerning departmental performance metrics was dismissed, albeit on different grounds. Where an employee alleges that redundancy was a sham, the Tribunal must assess the plausibility of the employer's asserted reason. Here, however, the Respondent relied on an efficiency review and reduced headcount, not on departmental performance. The requested metrics were therefore irrelevant to the pleaded issue.

4. The refusal of disclosure concerning the selection pool was set aside. Documents showing allocations after dismissal did not necessarily reveal the position when the pool was created. The Tribunal had failed to engage with that material distinction. Limited disclosure of the requested 2014 Compass reports for Ms Boddy was ordered.

5. The appeal was also allowed concerning post-dismissal communications. The Tribunal had intended to order a review of documents relating to the Claimant's dismissal, but its order mistakenly identified documents from a different search and issue. The terms of the intended search were proportionate, and the correct disclosure order was to be substituted.

• Employment Appeal Tribunal: allowed the appeal in part and substituted disclosure orders.
• London (Central) Employment Tribunal: made a disclosure case-management order after hearings on 29 September and 5–6 November 2015; the order was sent to the parties on 8 February 2016.