Santander UK Plc & Ors v Bharaj

An order for specific disclosure requires more than documents being potentially relevant. The applicant must show that the identified documents or category are likely to contain documents which fall within the standard-disclosure categories in CPR r 31.6. The tribunal must then decide whether the order accords with the overriding objective, including necessity, importance and proportionality.

The tribunal must determine those questions. It cannot make a further specific-disclosure order while leaving the assessment to a party’s solicitors on the basis that there may be an argument for relevance. Applications should normally be supported by evidence, and inspection by the tribunal is a last resort.

The claimant brought claims including whistleblowing detriment and automatic constructive unfair dismissal. She alleged nine protected disclosures concerning the respondent bank’s financial-crime and regulatory processes.

After her employment ended, she sent a detailed post-termination whistleblowing document. The bank investigated it but disclosed no resulting material, maintaining that it did not concern the pleaded disclosures. Employment Judge Deol allowed an application for specific disclosure and required a fresh consideration of whether investigation documents were relevant. The respondents appealed.

The central issue was whether the Employment Judge had lawfully made a specific-disclosure order without deciding whether the category was likely to contain disclosable documents.

1. Appeal allowed. The part of Employment Judge Deol’s order concerning the whistleblowing investigation documents was set aside.

2. By Rule 31 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, the tribunal’s disclosure power is governed by CPR Part 31. For specific disclosure, the first question is whether the documents, or the identified category, are likely to include documents which would be disclosable under CPR r 31.6. In a standard-disclosure case, that means documents on which a party relies or which adversely affect its own or another party’s case, or support another party’s case. Relevance is not itself the governing test.

3. Only after that threshold is met must the tribunal decide whether an order is justified under the overriding objective. The importance of the material, necessity for fair disposal, proportionality, cost and other relevant circumstances may then be considered. A document which is merely potentially relevant cannot found a specific-disclosure order.

4. Employment Judge Deol expressly declined to decide whether the investigation documents were likely to be disclosable. Instead, he required the respondents’ solicitors to reconsider the material and to disclose documents for which there might be an argument of potential relevance. That was an error of law. The judge had made a further specific-disclosure order but had omitted the necessary threshold finding.

5. The EAT rejected the separate challenge concerning the construction of the earlier May order, but that issue became academic once the later order was set aside. The EAT did not itself determine whether a fresh specific-disclosure order should be made. The available material suggested overlap between the alleged disclosures and the post-termination document, but evidence was needed about the investigation, searches and consideration of disclosure.

6. By consent, the respondents were ordered within 14 days to provide a statement of searches, confirm whether responsive documents falling within CPR r 31.6 existed, and disclose any such documents not already disclosed.

• Employment Appeal Tribunal: Allowed the respondents’ appeal from Employment Judge Deol’s case-management order and set aside the further specific-disclosure order.
• Employment Tribunal: Employment Judge Deol had allowed the claimant’s application for specific disclosure following an earlier disclosure order made by Employment Judge Elliott.