In this case, the Employment Appeal Tribunal (EAT) has upheld an employment tribunal case management decision to require specific disclosure of the employer’s internal documentation containing financial information.

Background and Facts

Disclosure in the employment tribunal is governed by Rule 31.6 of the Civil Procedure Rules. This requires a party to disclose the documents on which he relies, or which adversely affect his own or another party's case and those which support any other party's case. This is often referred to as the 'relevance' test.

The case involved 12 former flight crew who brought claims for unfair dismissal and, for some claimants, indirect discrimination on grounds including sex and age following a redundancy programme which followed the dramatic reduction in passenger flights caused by COVID-19 in 2020.

During a case management decision, the Employment Tribunal held that Virgin Atlantic Airways Ltd (Virgin) should disclose clean unredacted copies of internal management documents from the period April to July 2020 on grounds that the material was relevant to the issues pleaded in the case and disclosure was necessary and proportionate. Virgin had provided a redacted copy, having first deleted details about cost savings and employee costs. It did not provide unredacted copies of these documents because it stated that the information that had been redacted was not relevant to a specific defined issue in the Agreed List of Issues for the case or necessary to achieve a fair disposal of the proceedings. It also stated that the redacted information was "highly commercially sensitive".

The Employment Judge considered that the redacted information was relevant to whether redundancy was the reason for the claimants' dismissals, the fairness of the selection criteria, the reasons for the selection criteria used, and the extent to which Virgin had departed from the selection criteria previously agreed with the claimants' union. Further, in relation to the claimants' indirect sex and age discrimination claims, the information was relevant to show the extent to which the selection criteria could be justified as a proportionate means of achieving a legitimate aim.

Virgin appealed but the EAT upheld the case management decisions on the grounds that they were relevant to the pleaded issues and disclosure was necessary and proportionate.

What does this mean for employers?

Often employer respondents will have to consider what to do with commercially sensitive documents during a disclosure exercise. This shows that it is necessary to exercise caution in redacting documents. It will be necessary to go back to the CPR test. The test of relevance requires consideration of how each party's case has been advanced and assessment needs to be made of whether a document (or part of it) is likely to be of probative value to any of those issues.

Virgin Atlantic Airways Ltd v Lee Loverseed, Jonathan Fenton, Niamh O'Connor