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 obligations extend to all relevant documents, whether formal or informal, and whether casual and/or intended to be private.
  • Ensure Staff Handbooks include a suitable Policy regarding internal and external communications and documentary records, with clear guidelines.
  • Back this up with appropriate training on risk management, diversity and equal opportunities, data protection and due process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.