When dealing with an application for specific disclosure, should an Employment Judge use the test from the Civil Procedure Rules ('CPR')?
Yes, held the EAT in Santander v Bharaj, as well as considering whether disclosure is in accordance with the over-riding objective.
The case involved the employer's appeal against a disclosure order under rule 31 prior to a final hearing. The employer was ordered to disclose 'potentially relevant' material in documents arising from its investigation into matters raised by the Claimant after her resignation, which ended in the employer not disclosing anything, its view being that there was nothing relevant in those documents. The Claimant's subsequent strike-out application failed. The case is notable for the EAT's observations, summarised below, on how to deal with specific disclosure orders.
The test for whether a document is disclosable is based not so much on 'relevance', but on CPR Part 31 (for England and Wales). Rule 31.6 provides for disclosure of:
- any documents on which the party relies;
- any documents which adversely affect the party's own case; and,
- any documents which adversely affect or support another party's case.
An Employment Judge should decide what is disclosable on the basis of evidence from the parties about the documents (or categories of documents) themselves. This might be from witness statements or other materials showing why disclosure should be granted (or not).
The burden is on the applicant to put materials before the tribunal which establish the case for a disclosure order, and a respondent to an application may need to prove why the documents sought are not disclosable.
It is not the case that whether documents are disclosable or not can only be decided if the court or tribunal is able to read them for itself, but this might be appropriate in some cases.
A tribunal's disclosure order cannot go beyond what would be allowed under the CPR.
Thanks to Ed McFarlane of Law at Work for preparing this case summary.