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Tribunal correct to order disclosure of unredacted document containing financial information
Adrian Fryer
Disclosure is the part of tribunal proceedings where each party — employee and employer — provides the other with a list of all the documents relevant to the issues in the claim. The employment tribunals have adopted the civil court rules in respect of disclosure and inspection of documents. Rule 31.6 of the Civil Procedure Rules requires a party to disclose the documents on which he relies, or which adversely affect his own or another party’s case and those which support any other party’s case.
Information can only generally be redacted if it is irrelevant or privileged. In the recent case of Virgin Atlantic Airways v Loverseed and others, the Respondent argued that redacted information in a document was not disclosable because it was not relevant to the case. The Employment Appeal Tribunal upheld the tribunal’s decision that it should be disclosed in full.
The Respondent made the Claimants (who were all pilots) redundant. This happened after the COVID-19 pandemic caused reductions to air travel. All parties agreed that a redundancy situation had arisen. However, the Claimants disputed the fairness of their selection. They claimed the selection criteria were not clear. They said the process was designed to select those in the ‘middle bracket’ of pilots – the most expensive but not the longest serving. Some claimed indirect age and or sex discrimination as well as general unfairness.
As part of the disclosure process, the Respondent disclosed different versions of an internal document titled ‘Velocity 21’. It contained financial information about pilot costs. It included comparisons – looking at the different savings achieved from changes to terms and conditions or from reducing numbers. The Respondent redacted pilot costs and potential savings in these documents. They claimed that the redacted information wasn’t relevant so was not needed for fair disposal of the proceedings.
The Claimants made an application for specific disclosure of the unredacted documents. The tribunal granted this. It held that the unredacted documents were relevant to the issue of fair selection. They were also relevant to any argument of justification for the indirect discrimination claims. The Respondent appealed.
The EAT dismissed the appeal. It held that Rule 31.6 of the Civil Procedure Rules requires a party to disclose not just the documents it relies on, or which support any other party’s case. It must also disclose those that harm their own or the other party’s case. The EAT found that the documents were relevant. They would have a bearing on the issue of what the selection criteria were, whether they were fair criteria and whether they were influenced by costs savings (potentially harming the Respondent’s pleaded case that they were not).