Disclosure in Employment Tribunals

Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary

The EAT in Plymouth City Council v White has reminded tribunals about the correct approach to take in considering an application for the disclosure of documents containing confidential information.

(1) consider whether the document is relevant (if it is not, then it need not be disclosed).

(2) if it is relevant, is it necessary for a fair trial for it to be disclosed? Where there is objection, the Judge should examine the document itself to consider whether it should be disclosed, even if confidential.

(3) if the document is relevant and necessary and is to be disclosed, the Judge should consider whether there is a more nuanced way of disclosing the material so as to respect confidentiality; usually for the document to be wholly or partially redacted.

(4) the disclosure Judge having read the disputed documents should not conduct the full hearing unless the parties agree.