Employment law

Disclosure

Asda Stores Ltd v Thompson & others (2002) IRLR 245

The Employment Appeal Tribunal ruled that a tribunal was wrong to order that employers disclose to applicants 'in their totality' all confidential witness statements made by colleagues during the course of an investigation into allegations of gross misconduct.

In ordering 'blanket discovery', the tribunal failed properly to exercise its discretion.

A tribunal made direct disclosure in anonymised form and that should have been done in this case, so as to conceal the identity of the witnesses and maintain the employers' promise of confidentiality to those making statements.

If this meant that some of the statements had to be excluded because the identity of the makers could not be concealed, that would have to occur, and the question of the fairness of the dismissal would have to be judged on that basis.

For there to be a fair hearing, the applicants did not need to know the identities of those who made the allegations.

The investigating officer could be cross-examined in detail on the nature and extent of the investigation, and why he accepted or rejected the evidence.

Knight v Department of Social Security (2002) IRLR 249

In contrast to the case just cited, this decision of a differently constituted division of the EAT is surprising.

The EAT held that a tribunal was wrong to reject a request for disclosure of documents relating to a test an employee had sat, including the test questions used and the answer papers of the successful candidates.

The tribunal was wrong, according to the EAT, to order instead that the documents be provided for the tribunal itself so that, in determining the complaint of disability discrimination, it could ascertain whether the test had been properly marked.

That order was a breach of the principle that each party must have the right to see any relevant material which his opponent is placing before the tribunal and which that tribunal is taking into account in arriving at its decision.

There is no justification for imposing any restriction on disclosure other than a specific order restricting or prohibiting further use and, where appropriate, the personal details of the other candidates.

The argument that the test questions were confidential was rejected: 'confidentiality is not in itself a basis for refusing disclosure'.

The employers also said that if the test questions entered the public domain, a new test would have to be designed at a cost to the public purse of around 150,000 to 200,000.

However, and perhaps remarkably, the EAT concluded that while the cost of bringing out a new test was 'a material matter', it should not deprive the applicant of disclosure of the test question.

By Martin Edwards, Mace & Jones, Liverpool