Employment Appeal Tribunal confirms test for specific disclosure applications

When an employment tribunal is considering whether to order specific disclosure of documents, it must decide whether the documents sought satisfy the test in the Civil Procedure Rules (Santander v Bharaj).

Background

Ms Bharaj was employed by Santander as a senior manager from June 2017. She resigned on 8 January 2018 and her final day of employment was 2 April 2018. On 27 July 2018, she submitted a “post-termination whistleblowing document” (the “Whistleblowing Document”) raising issues which Santander then investigated. 

She brought tribunal claims including a claim for automatic unfair constructive dismissal and detrimental treatment on whistleblowing grounds.

Tribunal makes specific disclosure order

At a preliminary hearing, Ms Bharaj applied for disclosure of documents created by Santander during its investigation into the issues raised in the Whistleblowing Document. The employment judge ordered Santander to disclose relevant documents and indicated that the nature of the documents suggested they were potentially relevant.  

Santander did not disclose any documents, stating that none of the documents were relevant to Ms Bharaj’s claim. Ms Bharaj applied to strike-out Santander’s defence, arguing that Santander had not complied with the order for disclosure. The employment tribunal refused her strike-out application.

Santander appealed the specific disclosure order. It argued the tribunal had made an order for disclosure without first determining whether the documents were relevant.  

Employment Appeal Tribunal clarifies scope of specific disclosure orders

The Employment Appeal Tribunal allowed the appeal. An employment judge can only order specific disclosure of documents 

• On which the party relies or
• Which adversely affect the party's own case or
• Which adversely affect or support another party's case

in accordance with CPR 31.6. The judge must decide which documents or categories of documents meet the CPR test.  It will then need to decide whether disclosure is necessary for a fair disposal of the proceedings.  

The applicant must put materials before the tribunal to establish the case for a disclosure order and the tribunal may hear evidence from the parties on this issue.  In some cases, a tribunal might need to read the documents, but this isn’t always required. 

What does this mean?

This judgment confirms how tribunals should approach specific disclosure applications. Tribunals will need to consider the test in the CPR and determine whether the documents sought meet this test. A tribunal cannot make an order on the basis the test might be met. In addition, the test is not simply whether the document is “relevant,” although any document meeting the CPR test is likely to be relevant. When deciding whether to make an order, tribunals also need to consider the overriding objective and whether disclosure of the documents is necessary for a fair disposal of the proceedings.