Specific disclosure can only cover documents disclosable under CPR

Orders for standard disclosure or specific disclosure in employment tribunals can only cover documents that are disclosable under the test set out in Rule 31 of the Civil Procedure Rules. It is an error of law for an employment tribunal to order disclosure under any different or lower threshold, such as what is ‘relevant’ or ‘potentially relevant’ to the issues in the case, according to the EAT.

Santander v Bharaj UKEAT/0075/20/LA(V)

What are the practical implications of this case?

This judgment, while arguably setting out nothing new, will be helpful in that it:

• summarises the law on disclosure and specific disclosure in employment tribunals, with the key point being that documents must be ‘disclosable’ under CPR 31.5 and not just in some looser sense ‘relevant’ or ‘potentially relevant’
• gives some practical pointers as to how such applications should be dealt with in practice, such as that:
  • applications for specific disclosure in the employment tribunal should normally be supported by evidence because the burden is on the applicant to put materials before the tribunal which establish the case for an order
  • similarly, it may well be appropriate for a respondent to such an application to put in evidence or other materials which will assist the tribunal to decide whether the application should be allowed
  • it is emphatically not the position that the questions whether documents are likely to be disclosable, or are disclosable, or can be inspected by the other side, can only be decided if the court or tribunal is able to read them for itself there may be cases in which that is so, but generally the evidence about the documents or categories of documents will enable a decision to be made by reference to the pleaded issues in the case
  • there may be cases in which the better course from a case management point of view is to leave the determination of an application for specific disclosure to the trial of the claim
  • however, in many cases it will assist the parties and indeed the court or tribunal which has the conduct of the trial for issues of disclosure to have been resolved before the trial takes place
  • as is well known, it is a routine matter in the courts for applications for specific disclosure to be decided at preliminary hearing

What is the background?

The employment tribunal has the power to order any person in Great Britain (including, of course, but not limited to, persons who are a party to the proceedings) to:

• disclose documents or information to a party to proceedings (by providing copies or otherwise)
• allow a party to inspect such material

The tribunal’s power to make such an order is the same as the power county courts have to order disclosure under the Civil Procedure Rules (CPR).

Generally, the principles a tribunal will consider when deciding on the extent of the disclosure are:

• the overriding objective to deal with cases justly
• proportionality
• expense

The fundamental test for the extent of disclosure is whether it is necessary to dispose fairly of the proceedings.

If the tribunal simply makes an order for disclosure, this means ‘standard disclosure’, although it may also make orders for further specific disclosure. It may limit the extent of standard disclosure, and the parties may also agree to limit it in writing between themselves.

A party is only required to disclose documents in its control.

Standard disclosure means disclosure of:

• the documents on which a party relies
• the documents that adversely affect a party’s case
• the documents that adversely affect another party’s case
• the documents that support another party’s case
• documents which parties are required to disclose by practice directions

Each party is under a duty to make a reasonable search for these documents. It may be unreasonable to search for a particular kind of document if it would be too expensive, complex, onerous or unlikely to turn up documents of particular significance. If a party has not searched for a particular kind of document on this basis, it should say so in the statement of disclosure.

The duty to disclose extends to the end of the case, which means that if documents come to light at any time during the course of the proceedings, the other side must be notified.

A tribunal may sometimes make an order for specific disclosure. This might be necessary because a party has failed to comply completely with a general order for standard disclosure. It might also be because a party (most often the respondent) has refused to search for a particular type of document or has refused to allow it to be inspected because it would be disproportionate to do so. The tribunal can order that:

• a party disclose certain documents or classes of documents
• a party carry out a search of a certain kind
• a party disclose any documents found as a result of the search

Case details

• Court: Employment Appeal Tribunal
• Judge: The Honourable Mr Justice Linden
• Date: 26 November 2020

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