Birmingham City Council v Bagshaw

Third-party disclosure in Employment Tribunal proceedings requires a three-stage assessment: whether the documents may well assist a party, whether disclosure is necessary for fair disposal or to save costs, and whether the tribunal should exercise its residual discretion to order disclosure. Disclosure may exceptionally be ordered before claims are fully particularised where it is closely connected with identifying the issues and is likely to improve efficiency and fairness. Examination of documents before ordering disclosure is not essential in every case. It is particularly required where confidentiality is relied on, but a pragmatic course may be justified where no confidentiality objection is raised. The overriding objective, including securing equality of arms, may properly inform the final discretionary stage.

Eight employees brought equal pay claims following the transfer of their employment from Birmingham City Council to the Arthur Terry Learning Partnership. Their claims were initially pro forma and they experienced difficulty completing schedules and particulars. They applied for disclosure of judgments and interlocutory orders from other equal pay multiple cases involving the Council.

The Employment Judge ordered disclosure of that third-party material, subject to safeguards. The Council appealed, arguing that the Judge had applied equality of arms rather than relevance and necessity, had ordered disclosure before the issues were identified, and should first have examined the documents. The central issue was whether the disclosure order involved an error of law.

1. The appeal was dismissed. The Employment Judge had correctly directed himself on the applicable law, and his Reasons, read as a whole, adequately demonstrated that he applied the relevance and necessity requirements.
2. The governing approach involved three stages. First, the documents had to be likely to support the applicant’s case or adversely affect another party’s case. In this context, “likely” meant that the documents “may well assist”, as explained in Three Rivers District Council v Bank of England (Disclosure) (No. 4) [2003] 1 WLR 210. Secondly, disclosure had to be necessary to dispose fairly of the claim or save costs. Thirdly, even if those hurdles were met, the tribunal retained a residual discretion involving broader considerations.
3. The Judge was entitled to regard earlier equal pay judgments as potentially valuable for identifying relevant factual findings, concessions and issues, even though they would not be res judicata. The disclosure was linked to the Claimants’ inability to complete particularisation. Although early disclosure would normally be premature, the unusual circumstances justified an exception. The likely benefits included more focused case management, avoidance of re-litigation and saving costs.
4. The Judge’s concern about inequality of arms was not a substitute for the statutory test. It was a proper consideration when exercising the overriding objective under Rule 2 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and the residual discretion. The wide case-management powers recognised in O’Cathail v Transport for London [2013] ICR 614 supported appellate restraint absent legal error or perversity.
5. Prior examination of the documents was not invariably required. It was particularly relevant where confidentiality was asserted, but no confidentiality objection had been made below. The Judge gave rational, proportionate reasons for not requiring the Council to locate the documents before deciding the application. The distinction between judgments and interlocutory orders was raised only on appeal and caused no material prejudice because the order included redaction and limitations.

• Employment Appeal Tribunal: dismissed the Council’s appeal against the Employment Judge’s third-party disclosure order.
• Employment Tribunal: Employment Judge Goodier ordered Birmingham City Council to disclose specified judgments and interlocutory orders from named equal pay multiple cases, subject to redaction and limitations.