Employment Law Solutions. Expert advice... more personal

Blanket disclosure of documents

The Employment Appeal Tribunal in the case of Dhanda v TSB Bank Plc considered whether a respondent employer is able to demand blanket disclosure of all correspondence between a claimant employee and union representatives

Background

The Claimant was a branch manager at TSB Bank. She was summarily dismissed for gross misconduct. Throughout the disciplinary process the Claimant consulted with her trade union representatives who advised and represented her. The Claimant subsequently brought claims for both unfair and wrongful dismissal.

After proceedings were issued, the TSB Bank sought blanket disclosure of all relevant documents in the Claimant’s control. This included all communication between the Claimant and her union representatives, as well as all internal union correspondence related to her case.

The union objected on the grounds that the documents requested were not necessary for the fair disposal of the case and that such disclosure would interfere with the Claimant’s right to privacy of correspondence under Article 8 of the European Convention on Human Rights (“ECHR”) and her right to join a trade union under Article 11 of the ECHR.

Decision

At the Employment Tribunal the Judge noted that due to the fact that the union representatives were not legally qualified, none of the documents were subject to legal advice privilege, which would otherwise exclude the documents from disclosure. Documents created after the particulars of claim were finalised were however subject to litigation privilege. As a result, the Judge granted disclosure of all correspondence between the claimant and her union representatives up to the date when the particulars of claim were finalised.

The Claimant was allowed to appeal to the Employment Appeals Tribunal (EAT).

The EAT decided that in could not be the case that all the documentation passing between the claimant and her union representatives was relevant to the case, as relevance would hinge on whether these documents contained comments or admissions by the Claimant relating to the allegations against her, and that not every document would contain such comments or admissions. Blanket disclosure of all communication would amount to a warrant to fish for information. The judge set aside the order, and indicated that any further application by TSB bank should contain a precise list of the documents sought, which would allow the tribunal to inspect those documents and make a decision on the relevance of them.

Comment

It is important to note that while blanket disclosure of documents was not ordered, the potential vulnerability of communication between claimants or respondents and any representatives who are not legally qualified remains. If legal advice privilege does not apply this case confirms that a judge can order disclosure of any document

This entry was posted in Uncategorized. Bookmark the permalink.

Comments are closed.