One of the most important steps when preparing an employment law tribunal case for a hearing is when you exchange lists and copies of documents. What does this mean? This is the stage in case preparation when the parties are obligated to disclose to each other documents that are relevant to the issues in the claim, even if those documents do not help their case. It’s the moment all cards are put on the table!
In Virgin Atlantic Airways Ltd v Loverseed & Ors, the Employment Appeal Tribunal (EAT) upheld an order made by the Employment Tribunal (ET) against Virgin Atlantic to disclose an unredacted financial document that they had created.
Virgin Atlantic had made the claimants, who were all pilots, redundant following reductions in air travel due to the Covid pandemic. Mr Loverseed and the other claimants believed that they had been unfairly selected for redundancy. They claimed that the selection criteria were opaque and had been designed to select those in the “middle-bracket” of pilots – those who were most expensive but not the longest-serving. As well as bringing claims for unfair dismissal, some of the claimants brought claims for indirect age and sex discrimination as well.
Virgin Atlantic was ordered to provide all versions of an internally created document called “Velocity 21”, which contained financial information about pilot costs including comparisons that showed the savings from changes to terms and conditions and/or from cutting head count. Virgin Atlantic had redacted (blacked out) the pilot costs and potential savings when they disclosed these documents to the pilots. They said it was not necessary information for the fair disposal of the hearing.
The pilots made an application for specific disclosure of the unredacted Velocity 21 document, which the Employment Tribunal granted as it was relevant to the issue of whether the pilots had been fairly selected and whether there was any justification for the indirect discrimination. The Respondent appealed against this decision to the EAT.
The EAT rejected the appeal stating that a party must disclose all documents even if they do not support or even harm their case. The EAT said that the documents were relevant to deciding how the pilots had been selected for redundancy and should therefore be disclosed. The order for specific disclosure was upheld. The case has gone back to the Employment Tribunal for determination.
As a litigator, I review employer’s list of documents carefully to make sure that all relevant categories of documents have been disclosed. If there are any missing, I will write to the employer’s representative and ask for their voluntary disclosure. If they refuse, I will make an application for specific disclosure. It is important to make sure that if you are going to a hearing you have all the relevant evidence and that the employer complies with its duties to disclose relevant documents especially as in the majority of cases they will most likely hold most of the pertinent documents.
This blog was written by Anita Vadgama, Partner at didlaw.
