EAT Practice and Procedure: Disclosure – Disclosure – Rule 31 of the Employment Tribunal Rules of Procedure 2013 – ET Case Management
Various Orders for specific disclosure had been made by the ET as part of its case management of the Appellant’s claims of unfair dismissal (section 98 Employment Rights Act 1996 (‘ERA’)) and automatic unfair dismissal (section 103A ERA). The ET had, however, declined to make other Orders pursuant to the Appellant’s application and/or had made an Order that appeared not to reflect the ET’s reasoned decision on the application.
The Appellant appealed.
Held: upholding the appeal in part
The first category of documents in issue related to an aspect of one of the alleged protected disclosures. The ET had declined to order disclosure of the documents in question on the basis that they ‘do not and could not exist’. That could not be correct in terms of the documents sought by the Appellant in terms of the record of any bids made by the Respondent. These documents were relevant to the determination of the number of bids made and their timing – an issue going to the reasonableness of the Appellant’s belief, which was a point the ET would have to determine at the trial of this matter. The ET’s reasons not having engaged with the actual basis of the application and the Appellant having satisfied the Court that this disclosure was necessary for the fair trial of his claims, the ET’s decision in this regard would be set aside and an Order for disclosure of the bid documents sought substituted.
As for the other documents sought in this category, however, the position was different. The ET had considered the broader points in issue and had received evidence as to the searches already undertaken and was satisfied that there was nothing left falling within this category that it should order to be disclosed. That could not be said to be an improper conclusion and the appeal against this aspect of the decision was refused.
The second category of documents in issue related to the reason for the Appellant’s dismissal. The Respondent contended that this was by reason of redundancy but the Appellant put that in issue, asserting that this was a sham reason. Although the ET had wrongly declined to order background departmental performance documentation on the basis that it did not exist (it plainly did), the decision had been correct given the irrelevance of those documents to the issues before the ET. Although the reason for dismissal was in issue, the Respondent was not relying on departmental performance issues as having led to the redundancy decision: it was asserting that this arose from a general efficiency review of headcount, regardless of the department’s performance. That being so, the disclosure sought was unnecessary for the issues to be determined.
That could not be said, however, in respect of the documents going to the identification of those who were to be considered as part of the pool for selection. The ET had apparently considered it sufficient that the Respondent had disclosed documents relating to the assignment of work after the Appellant’s dismissal. That, however, did not necessarily show the picture at the time the selection decision was made and the ET’s decision had apparently failed to engage with this relevant consideration. Given the evidence of the Appellant before the ET, it was appropriate to order the limited disclosure sought.
Finally, it was common ground that the ET’s Order had confused two different categories of disclosure documents when allowing the Appellant’s application in respect of communications relating to him/the termination of his employment, in the period immediately post-dating his dismissal. Respecting the decision of the ET in this regard, the appeal would be allowed and an Order substituted for the correct category of documents.
Eady QC HHJ
[2016] UKEAT 0058 – 16 – 1603
Bailii
Employment Tribunal Rules of Procedure 2013 31
England and Wales
Employment
Updated: 10 November 2021; Ref: scu.562548