Dhanda v TSB Bank plc

Confidentiality does not itself make documents immune from disclosure. Relevance alone is also insufficient. The decisive question is whether disclosure of a document is necessary for the fair disposal of the proceedings.

Where confidential communications between a trade union and its member are sought, a tribunal should identify the live disputed issues and ordinarily inspect the documents before ordering disclosure. A general order requiring all such communications merely to discover whether an admission might exist is an impermissible fishing expedition. The confidentiality interest identified in Nassé remains engaged, although the tribunal did not determine the wider effect of Convention rights.

The claimant, a bank branch manager, brought claims arising from disciplinary action which resulted in demotion and transfer. The respondent sought disclosure of all communications shared between the claimant and her trade union between July 2016 and January 2017.

An Employment Judge ordered that general disclosure. The claimant appealed to the Employment Appeal Tribunal, contending, among other matters, that the order failed to respect the confidentiality of union-member communications and was not confined to documents relevant and necessary to the issues.

The central issue was whether a tribunal could order blanket disclosure of confidential, though unprivileged, communications without identifying the live issues and inspecting the material offered for inspection.

1. Appeal allowed. The Employment Judge’s general disclosure order was set aside.

2. The applicable disclosure principles were those stated in Nassé v Science Research Council [1979] IRLR 465 and Canadian Imperial Bank of Commerce v Beck [2009] IRLR 740. Confidentiality does not alone prevent disclosure, but relevance does not alone justify it. Disclosure must be necessary for the fair disposal of the proceedings.

3. The communications between a union and its member were confidential, despite the absence of legal professional privilege. That confidentiality required careful treatment. The Employment Judge had not identified the particular factual issues that would be live at the merits hearing, nor explained why all communications could be relevant and necessary to those issues.

4. The order allowed the respondent to inspect all material in the hope of finding admissions. That was a fishing expedition. An admission of wrongdoing in otherwise unprivileged communications could be disclosable, but the possibility that one might exist could not justify blanket disclosure.

5. The Employment Judge could not properly make the order without first being told the live disputed issues and then inspecting the documents to assess both relevance and necessity. It was unnecessary to decide the proposed wider argument that Articles 8 and 11 of the European Convention on Human Rights create a presumption against disclosure of union-member communications.

6. If the respondent renewed its application, it had to identify precisely the disputed factual issues to which the communications could potentially relate. The Employment Judge hearing the case should then inspect the material and order disclosure only of documents both relevant and necessary for fairly disposing of the proceedings.

• Employment Appeal Tribunal: allowed the claimant’s appeal and set aside the Employment Judge’s general disclosure order.
• Employment Tribunal: Employment Judge Bloom had ordered disclosure of all communications shared between the claimant and her trade union for the specified period. No citation was stated in the judgment.