N Bari v Richmond & Wandsworth Councils

An employment tribunal has power under its general case-management power to order a party to provide information or answer questions. The same broad principles govern requests for information and disclosure: the material must be likely to assist or detract from a party’s case, the order must be necessary for fair disposal, and the tribunal must exercise its discretion consistently with the overriding objective.

A request for information may impose materially different practical burdens from a request for existing documents. Fishing expeditions remain impermissible. A tribunal must nevertheless give sufficient reasons to show that it has addressed the claims and identifiable groups of requests advanced. It cannot reject a request solely by saying that a reasonable-adjustments claim concerns the claimant’s individual circumstances where comparable adjustments may bear on the respondent’s explanation.

The claimant brought disability discrimination, reasonable-adjustments, harassment and victimisation claims against his joint employers. Following postponement of the listed merits hearing, he asked the respondents eight questions seeking workforce information about disabled employees and adjustments, including changes to working days and hours.

He later asked the Employment Tribunal to order specific disclosure or inspection. Employment Judge Wright refused the application and, on reconsideration, stated that it was unclear how the information would assist because the reasonable-adjustments claim concerned the claimant’s particular circumstances.

The claimant appealed the refusal. He also obtained permission to add a ground that the decision gave inadequate reasons. The central issue was whether the tribunal had applied the correct principles and adequately explained its refusal of an application for information.

1. Appeal allowed. The refusal of the claimant’s application was set aside and remitted to a different Employment Judge for fresh determination.

2. The claimant sought information, not disclosure of identified existing documents. Relabelling the request as one for specific disclosure did not alter its substance. An Employment Tribunal has power under rule 29 of the Employment Tribunals Rules of Procedure 2013 to order a party to provide information or answer questions.

3. The broad approach to information requests is the same as for disclosure. The tribunal should consider whether the material is likely to assist or detract from a case or issue, whether an order is necessary for fair disposal, and whether discretion should be exercised consistently with the overriding objective. These are interacting considerations, not rigid compartments. The practical work required to find, collate, analyse or process pure information may be highly material. Fishing expeditions are impermissible.

4. The tribunal’s reasons did not address the request’s asserted relevance to the direct-discrimination and victimisation complaints. Information about adjustments for sufficiently similar colleagues might cast light on the genuineness of the respondents’ explanation for refusing the claimant’s requested adjustment, and hence on those claims.

5. Nor was it a complete answer to the reasonable-adjustments complaint that it concerned the claimant’s individual circumstances. The tribunal could have found the eight questions too wide or disproportionate, but it did not explain that conclusion or indicate its decision on the three identifiable groups of requests. The reasoning was therefore not Meek-compliant.

6. The EAT could not substitute its own decision. The application was remitted without further directions as to procedure, but to a different judge because Employment Judge Wright had already considered it three times.

• Employment Appeal Tribunal: appeal allowed; the refusal of the information application was set aside and remitted to a different Employment Judge.
• Employment Tribunal, London South: Employment Judge Wright refused the claimant’s application for specific disclosure by letters of 23 October and 10 November 2023. On reconsideration, the application was again refused by letter of 10 January 2024; a further request was refused on 2 February 2024.