The employee sought to amend his pleadings to add an allegation that the employer had failed to disclose documents, allowing a misleading impression to be left. The rules prevailing in Employment Tribunals made no express provision for disclosure of documents.
Held: ‘ The omission from the Rules of any duty of disclosure in the absence of a formal discovery order must, we agree, be presumed to have been deliberate. Nevertheless, the freedom of a party to keep documents up his sleeve must be subject to some limitation to prevent it from being abused as an instrument of fraud or oppression . . We therefore accept the general proposition that no party is under any obligation, in the absence of an order from the [Employment Tribunal] to give discovery in the Tribunal proceedings. That is subject, however, to the important qualification that any party who chooses to make voluntary discovery of any document in his possession or power must not be unfairly selective in his disclosure. Once, that is to say, a party has disclosed certain documents (whether they appear to him to support his case or for any other reason) it becomes his duty not to withhold from disclosure any further documents in his possession or power (regardless of whether they support his case or not) if there is any risk that the effect of withholding them might be to convey to his opponent or to the Tribunal a false or misleading impression as to the true nature purport or effect of any disclosed document’
Citations:
[1985] ICR 278, [1985] IRLR 47
Jurisdiction:
England and Wales
Employment
Updated: 06 May 2022; Ref: scu.561939