Disclosure Of Documents In Tribunal Proceedings - Beware The Smoking Gun

In Beck v Canadian Imperial Bank of Commerce

UKEAT/0064/09/ZT, the Employment Appeal Tribunal

("EAT") has highlighted the potential

scope of an employer's disclosure obligations during Tribunal

proceedings, in this particular case in relation to discrimination

claims.

BACKGROUND

Unless specifically ordered otherwise by the Tribunal, the

disclosure obligations of parties in Tribunal proceedings include

any relevant documents which may adversely affect their case.

FACTS

Mr Beck, a German employee, brought a claim for race

discrimination against the Bank when he was selected for

redundancy, on the ground that the Bank favoured Canadian employees

when it came to job losses. As part of his case, he produced

internal correspondence regarding a fellow non-Canadian employee

who had raised a grievance about an unrelated redundancy process.

That correspondence included material showing that the

decision-making managers felt morally obliged to "look

after" the Canadians ahead of the non-Canadians. It also

included examples of Canadians who had been so "looked

after".

Mr Beck applied to the Tribunal for specific disclosure of,

firstly, all documents relating to his colleague's grievance

and appeal and, secondly, all documents relating to decisions to

offer guarantees to or to redeploy the Bank's employees since

January 2007. The Tribunal Judge refused the application.

DECISION

The EAT ruled that these documents were all disclosable. They

provided evidence of less favourable treatment of employees who had

no links with Canada and, as such, were indicative of a culture of

discrimination. A central factor in the EAT's decision was that

evidence of what the "leading lights" within the employer

say helps to prove (or disprove) a culture of discrimination. The

Bank argued that such documents were confidential but the EAT held

that redacting the names of the document authors would suffice to

protect their anonymity.

ACTION POINTS

Employers need to ensure that staff take care to avoid creating

inaccurate or incomplete documents that might inadvertently be

damaging to the employer.

Managers and staff need to be aware that disclosure...