Transcription

• Speaker #0

  Today in the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of Bari and Richmond and Wandsworth councils, in which the Employment Appeal Tribunal was asked to consider whether an employment tribunal has the power to order a party to provide information rather than documents to another party in answer to their questions. In this case, B is a duty manager of a sports centre and disabled by way of psoriatic arthritis. B brought multiple complaints within two claims in the Employment Tribunal relating to disability discrimination. Direct discrimination, failure to make reasonable adjustments, harassment and victimisation. B sought a case management order from the Tribunal requesting disclosure of information from the employer regarding reasonable adjustments which had been made for other disabled employees. He set out eight detailed questions, a number of which contained different parts, and all of which required specific, mostly numeric answers. The employer opposed the application, stating that it was made late in the day, that B had not clarified the procedural basis or relevance, and had not explained how answering these questions would assist the tribunal. The employer added that some of the information was not available in the form requested. For example, the employer did not hold a central record of which employees had benefited from reasonable adjustments and which managers were involved. The employment judge refused to grant the application for the case management order, stating that it was not clear how the information B had requested would assist the tribunal and that his claim for reasonable adjustments related to his own particular situation and circumstances. B appealed to the Employment Appeal Tribunal. The Employment Appeal Tribunal confirmed that the Tribunal does have the power to order the disclosure of information. Although a request for information or answers to questions is conceptually distinct from a request for disclosure of documents, a Tribunal still needs to approach such applications in a reasoned and principled way, and the general test and principles as to whether a Tribunal should make an order are broadly the same whether the application is for disclosure in the form of documents or for information, namely 1. whether the disclosure sought is necessary for fairly disposing of the proceedings, 2. whether the information sought is relevant, and 3. whether the court should exercise its discretion to make an order in the light of broader considerations, such as public interest or third-party rights, such as privacy or confidentiality. However, when it comes to applying the general principles to a request for information, there may be real practical differences. For example, The task in complying with the order may require considerable work to find and collate the information or to ascertain if it even exists. It may require analysis or processing of raw information in order to answer the specific questions asked. Even if some answers might turn out to be found within existing documents, the substantive nature of the exercise may involve significantly different work. The Employment Appeal Tribunal also noted that in either case, so-called phishing expeditions are not permitted. In this case... The Employment Appeal Tribunal found that the Tribunal had erred in its approach to B's application for disclosure of information in that it had not provided a sufficiently reasoned explanation as to why B's application was refused and had not considered the relevance of the information requested in respect of all the claims B was making. Rather, it had specifically mentioned the relevance of the information only in respect of his reasonable adjustments claim. However, The tribunal should have addressed B's application as it also related to his direct discrimination and victimisation claims, since on a reading of B's application and supporting correspondence, it was clear that he was arguing that the information sought was also relevant to those aspects of his claim. The Employment Appeal Tribunal therefore allowed the appeal and sent the issue back to a fresh tribunal for consideration. Look out for further episodes in this series to stay up to date on all things HR and employment law related.