Must communications between a Claimant and her trade union about disciplinary proceedings leading to dismissal be disclosed in subsequent employment tribunal proceedings about the same dismissal?
Not unless disclosure is necessary to fairly dispose of the proceedings, held the EAT in Dhanda v TSB Bank.
Mrs Dhanda was a TSB Branch Manager who was dismissed in the aftermath of an unfortunate mix-up that resulted in the destruction of the branch's computer server. In her subsequent unfair dismissal proceedings, the Bank sought, and was granted, specific disclosure of all documentation of her communications with her trade union in the course of the disciplinary proceedings.
Counsel for Mrs Dhanda raised arguments about her rights under articles 8 (privacy) and 11 (freedom of association), but the judge preferred to leave those "difficult and far-reaching" matters to another day. He ruled simply that the employment judge had erred in failing to limit his disclosure order to what was both relevant and necessary, having due regard to confidentiality, for the fair disposal of the proceedings. Nasse v Science Research Council remained the seminal case in relation to the disclosure of confidential material.
Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary.