Virgin Atlantic Airways Ltd v Lee Loverseed & Ors

The Employment Appeal Tribunal considered an appeal against an employment tribunal case management decision (made by Employment Judge Eeley) ordering disclosure of unredacted internal management documents produced by the airline between April and July 2020. The principal legal issue was whether the redacted financial material was "relevant" for the purposes of disclosure under CPR 31.6, and whether partial redaction was permissible without additional attestation. The Tribunal held that relevance for disclosure depends on the scope of the pleaded cases (grounds of claim and grounds of resistance) and the list of issues, and is an evaluative judgment rather than an ordinary case management discretion. The redacted financial information was likely to support or adversely affect the parties' pleaded cases in relation to (i) the fairness of selection criteria for redundancy (including transparency and whether maximising cost savings influenced selection or departures from agreements with the union BALPA), and (ii) the justification and proportionality assessment in the indirect discrimination claims. The Tribunal rejected the submission that a heightened procedural attestation regime (as argued from Hancock) applied to ordinary disclosure of documents, and confirmed that GE Capital and related authorities govern redaction practice in disclosure. The appeal was dismissed and the judge's order for production of clean copies (save for payroll-identifying material) was upheld.

This was an appellate challenge to an employment tribunal's case management decision requiring disclosure of unredacted management documents (Velocity 2021 and related material) created during April–July 2020 which contained pilot costings and comparative savings for various redundancy/consultation options. Twelve former and current flight crew brought unfair dismissal and, for some, indirect discrimination claims following redundancies prompted by COVID-19. The claimants sought unredacted documents on the basis that the financial figures bore on the airline's true reasons for the selection criteria used in the redundancy exercise.

Nature of the application:

• The claimants sought an order for specific disclosure of redacted financial information in internal documents; the respondent resisted on relevance and commercial sensitivity grounds.

Procedural history and path to this court:

• The matters were case managed by Employment Judge Eeley, with a sequence of preliminary hearings and finalisation of a composite list of issues. The tribunal directed consideration of specific disclosure requests and ordered production of clean unredacted copies of the documents (apart from payroll-identifying parts). That case management decision was appealed to the Employment Appeal Tribunal and determined by Sarah Crowther KC, Deputy High Court Judge.

Issues framed:

• Whether the redacted financial information was relevant for disclosure under CPR 31.6 in light of the pleaded cases and list of issues.
• Whether partial redaction of documents required a separate or heightened solicitor attestation analogous to Hancock v Promontoria.
• Whether disclosure of the redacted material was necessary and proportionate for the fair disposal of proceedings.

Reasons and court's analysis:

• The EAT emphasised that relevance for disclosure is determined by reference to the pleaded statements of case and list of issues and is a factual, evaluative question under CPR 31.6. The court rejected the submission that the tribunal was exercising a conventional case management discretion on the question of relevance, although it acknowledged deference where proportionality or necessity was principally in issue.
• The EAT accepted that partial redaction is permitted under ordinary disclosure practice (as explained in GE Capital and related authorities) and that no separate general attestation regime, equivalent to that required when a court must construe a contract (as in Hancock), applies to ordinary CPR 31 disclosure of documents.
• Applying the CPR 31.6 test to the pleadings and list of issues, the EAT upheld the tribunal's conclusion that the redacted financial material was likely to support or adversely affect the parties' cases on: (a) the transparency and fairness of the selection criteria; (b) whether maximisation of salary savings influenced the selection criteria or caused the respondent to depart from agreements with BALPA; and (c) the respondent's justification/proportionality defence to alleged indirect discrimination.
• The EAT found disclosure of the modest number of pages to be proportionate and necessary for fair disposal, and rejected arguments that disclosure would cause disproportionate disruption to case management.

Outcome: The appeal was dismissed and the tribunal's direction requiring production of clean copies (except for payroll-identifying material) was affirmed, with a short time limit imposed for compliance.

The appeal is dismissed. The Employment Appeal Tribunal held that the employment tribunal had correctly applied the CPR 31.6 relevance test to the redacted management documents and was right to conclude that the financial information was likely to support or adversely affect the pleaded cases on the fairness of the selection criteria and the justification/proportionality assessment in the indirect discrimination claims. The EAT also held that ordinary disclosure practice (as in GE Capital) governs partial redaction and that no separate general attestation regime (akin to Hancock for contractual construction) applies to CPR 31 disclosure. The order for production of clean copies (save for payroll-identifying material) was therefore upheld as necessary and proportionate.

Appeal from an employment tribunal case management decision of Employment Judge Eeley concerning disclosure of internal management documents (the tribunal's relevant decisions and case summary are dated in the judgment, including a decision recorded following a hearing of 23 June 2023 and a case management decision referred to as 29 August 2024). The EAT ([2024] EAT 79) heard the appeal and dismissed it, affirming the tribunal's disclosure direction.