Disclosure of unredacted financial documents ordered in redundancy unfair dismissal and discrimination claims
Employment Tribunals have adopted the civil court rules in respect of disclosure and inspection of documents.
Rule 31.6 of the Civil Procedure Rules (CPR) requires a party to disclose the documents on which it relies, or which adversely affect its own or another party’s case and those which support any other party’s case.
The recent case of Virgin Atlantic Airways Ltd v Loverseed and others provides an example of the issues that can arise during the disclosure process, particularly regarding disclosure of information which may harm a party’s case.
Background
Twelve former flight crew of the Respondent airline brought claims for unfair dismissal and some of them also brought claims for indirect discrimination on grounds including sex and age following a redundancy programme at the beginning of the COVID-19 pandemic in 2020.
Although most of the Claimants accepted that there was a genuine redundancy situation, they all questioned the procedural fairness of their dismissal. In particular, it was contended that the Respondent’s selection criteria were not “transparent”.
The Respondent initially disclosed about 50 pages of documents in redacted form, including copies of internal management documents that had redacted information relating to employee costs and potential savings. The Claimants argued that this information was relevant to their claims and made an application for specific disclosure of the unredacted documents.
The Employment Tribunal judge found that “The flavour of all these documents is that they provide an analysis of the various options available to the Respondent during the consultation and redundancy period under consideration in these proceedings, including an analysis of the financial impact of the various options.”
By a case management decision on 29 August 2023, it was held that the Respondent should disclose unredacted copies of the internal management documents from the period April to July 2020 on the grounds that the material was relevant to the issues pleaded in the case and that the disclosure was necessary and proportionate.
It was held that the redacted portions of the documents were relevant to:
- Whether there was a redundancy situation and whether redundancy was the reason for dismissal in the Claimants’ case;
- The fairness of the selection criteria from an unfair dismissal perspective; and
- The discrimination claims to show whether the selection criteria could be justified as a proportionate means of achieving a legitimate aim.
Employment Appeal Tribunal (EAT)
The Respondent appealed on the ground that the Claimants had only raised the issue of the fairness of the selection criteria in general terms and did not specifically allege that one of the selection criteria had been maximisation of permanent costs savings and changes to terms and conditions. The Respondent alleged that this was a “fishing expedition” which would allow the Claimants to obtain disclosure of material which was not yet an issue in the case but which might become an issue because of the disclosure sought. The EAT held that the Respondent’s initial disclosure was too narrow and failed to properly account for the potential for the information to adversely affect its own case.
The EAT held that the Employment Tribunal judge was right to find that the unredacted documents were relevant. It found that the Respondent’s pleading was “coy” on the question of the actual selection criteria, especially considering the Claimants’ direct complaint of lack of transparency. The redacted material was therefore likely to be relevant when considering the selection criteria used and whether the criteria was fair or influenced by factors other than those presented to the Claimants or their trade union. The redacted material was also likely to be relevant to the Employment Tribunal’s assessment of the aims of the Respondent’s business and whether the redundancy scheme was a proportionate means of meeting those aims.
It was also held that uncovering the redactions was not disproportionate and that the relevant material could be revealed easily as it was modest in amount, about 50 pages.
The appeal was therefore dismissed and the clean copies (save for redactions which concerned pilot payroll information) were ordered to be provided within seven days. The Employment Tribunal hearing is due to take place in January 2025.
Comment
CPR 31.6 provides no definition of documents which “support” or “adversely affect” any party’s case in the standard disclosure test. The test of relevance when disclosing is a factual question, requiring consideration of how each party’s case is advanced and an assessment of whether a document (or part of it) is likely to be of probative value to any of the issues in dispute. Parties should therefore carefully consider all documents when disclosing to ensure they abide by CPR 31.6.
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