Employers should not count on confidentiality

EAT rules employment tribunals must exercise discretion when employers
claim confidential material cannot be presented. By Alison Hollingsworth,
associate in the Employment Rights and Benefits Group at Bristows

This article looks at two interesting EAT decisions relating to orders for
disclosure in employment tribunal proceedings.

Asda Stores Ltd v Thomson and others, 2002, IRLR 245, concerned unfair
dismissal claims by three Asda managers dismissed as a result of allegations
involving their use and supply of illegal drugs at company events. Asda carried
out an investigation into the allegations and took statements in confidence
from a number of employees.

The statements were never shown to the managers. At the end of the
investigation, Asda concluded that the allegations were well founded and the
managers were summarily dismissed.

In the employment tribunal, the managers made an application for disclosure
of the statements. Asda resisted the application on the grounds that a promise
of confidentiality had been given to those who made the statements and
disclosure would breach that promise. The reason that promise was made was
because of fear of reprisals; disclosure of the statements and identity of
witnesses were not necessary for a fair disposal of the claims.

The tribunal found the statements were relevant documents and necessary for
the fair disposal of the case and ordered them to be disclosed in totality.

The EAT held the employment tribunal could have directed disclosure of
documents in an anonymous or redrafted form. The tribunal could have done so by
ordering that the identity of the witnesses be concealed, thus maintaining the
promise of confidentiality to those witnesses.

The EAT considered Asda had acted perfectly properly in offering
confidentiality, particularly where hard drugs were allegedly involved. The EAT
added, however, that if it was not possible to conceal the identity of a
witness other than by excluding a statement in its entirety, then this is what
the tribunal must do.

In Knight v Department of Social Security, 2002, IRLR 249, Mr Knight, a
disabled person, applied for an administrative post. In common with other
disabled candidates, he had to sit an exam, which, if passed, would lead to an
interview. He was initially informed that he had passed the test but later he
received a second letter saying he had in fact failed. Knight subsequently
lodged a disability discrimination claim, alleging his test papers had been
altered. In order to prepare his case, he requested disclosure of his original
test papers as marked, the original test answer papers of the successful
candidates, the original test questions taken by all disabled candidates and
the application forms of the successful candidates.

The employment tribunal ord-ered disclosure should be made of all the items,
but only to the tribunal itself, not to Knight or his representatives. Knight
appealed, extending his disclosure request to a set of model answers to the
test as well.

The EAT held that all the documents requested by Knight were relevant and
that no restriction on the use of these documents could be justified, save
where the personal details of the other candidates were concerned. In
particular, the EAT said that it could not accept the DSS’ argument that if the
test questions entered the public domain it might be put to the considerable
cost (£150,000- £200,000) of setting another test.

Key points

● Confidentiality per se is not a reason for refusing disclosure
● In appropriate cases, a document may have to be excluded where the
identity of an employee cannot be concealed
● Wide disclosure may be grant-ed in discrimination cases where documents
are relevant to the applicant’s complaint.
● Alison Hollingsworth is an associate in the Employment Rights and
Benefits Group at Bristows

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