26 January 2018
In Dhanda v TSB Bank Plc, the claimant had been dismissed for gross misconduct. She had been represented by her union throughout her disciplinary proceedings and claim. During the Employment Tribunal proceedings, her employer requested disclosure of all correspondence between her and the union so that it could see if this contained relevant comments.
The Tribunal ordered this disclosure up to the point when the particulars of claim were filed (as litigation privilege applied thereafter). However, the EAT disagreed. It held that a disclosure of all correspondence was far too wide and was effectively a “warrant to conduct a fishing expedition”. It said that if the employer wished to make such an application it would have to precisely set out which disputed facts the documents were relevant to and the Judge would then inspect the documents to see whether they were relevant and necessary for the disposal of proceedings.
Employees who seek advice from those who are not legally qualified (such as union representatives) do need to remember that legal advice privilege will not apply to their discussions and correspondence could be disclosable, however, this case will provide some assurances that employers cannot request sight of all such correspondence on the off chance it contains comments helpful to its case.