Dhanda v TSB Bank plc

There is no automatic immunity for communications between a trade union and its member, but relevance alone does not justify disclosure. Tribunals must test union‑member documents against the necessity standard for fair disposal and ordinarily inspect documents before ordering disclosure. An order for broad disclosure should not be made without a prior identification of the specific disputed factual issues to which the documents might be necessary.

The claimant appealed an Employment Tribunal order requiring disclosure of all correspondence between her and her trade union arising during disciplinary processes. The Employment Judge ordered general disclosure between specified dates. The claimant challenged that order on grounds including failure to apply the correct legal test, inadequate reasons and interference with Convention rights. The appeal was expedited to preserve a forthcoming ET hearing. The central question was whether the ET had lawfully ordered broad disclosure of union‑member communications without first identifying live issues and inspecting the documents.

1. The appeal is allowed. The Employment Tribunal's order for general disclosure is set aside. (Overall disposition.)
2. The correct legal test is that disclosure of confidential documents is permissible only if it is shown to be necessary for the fair disposal of the proceedings. Relevance alone is insufficient. The EAT follows the principles in Nassé v Science Research Council and [2009] IRLR 740 (Beck) on necessity and inspection. (Legal standard and authorities) (see paras [13]–[17]).
3. A Tribunal should ordinarily inspect documents said to be confidential before ordering disclosure. That inspection should assess whether the documents are both relevant to issues actually in dispute and necessary for a fair trial. The judge should consider whether the necessary information can be obtained by other means. (Procedure; application of the test) (see paras [16]; [28]–[33]).
4. Before inspection, an applicant seeking disclosure of union‑member correspondence must identify with precision the disputed factual issues to which the correspondence could potentially be relevant. A general request to search all correspondence without issue‑specific identification invites a fishing expedition and is unlawful. (Case‑management requirement) (see paras [28]–[34]).
5. The Employment Judge erred by ordering broad disclosure without first identifying live disputed issues and without inspecting the documents to test necessity. The EAT did not determine or alter the application of Articles 8 and 11 of the Convention in principle, because resolution of ground 4 made that unnecessary. (Limit of decision; Convention rights) (see paras [26]–[31]).
6. Practical order: the ET order is set aside. If the respondent renews its application it must specify the precise disputed issues and the Employment Judge should carry out an inspection and then decide what is relevant and necessary. (Disposition and directions) (see paras [34]–[36]).

• Employment Appeal Tribunal: Appeal allowed; order for general disclosure set aside; remitted for issue‑specific application and inspection by the Employment Judge (paras [34]–[36]).
• Employment Tribunal (Huntingdon): Earlier order by Employment Judge Bloom for broad disclosure of union‑member correspondence (order dated 8 November 2017; Reasons paras [12]–[17]).