In this post we’re going to look at the recent Employment Appeal Tribunal case of Plymouth City Council v White UKEAT/0333/13/LA, which covered applications for specific disclosure and when disclosure can be ordered by an Employment Judge.

Synopsis: the Employment Appeal Tribunal found that the Employment Judge had erred in applying a “relevance” test instead of whether a “necessary” test i.e. whether the documents where necessary for a fair trial.

The facts in Plymouth City Council v White UKEAT/0333/13/LA

The claimant, who was dismissed after the respondent discovered facts which suggested he had a “propensity for violence”, brought an unfair dismissal claim in the employment tribunal in 2012 (as well as a discrimination claim which was subsequently struck out). There was a five-hour case management discussion in May 2013 relating to the disclosure of documents for the employment tribunal and the Employment Judge ordered that a number of documents must be disclosed by the respondent because they were “relevant” to the claim brought by the claimant. The respondent subsequently appealed this ruling, claiming that the Employment Judge had applied the wrong test.

The law relating to applications for specific disclosure

The law relating to applications for specific disclosure in the Employment Tribunal is fairly clear. Under the (old rules) the Employment Tribunal may order disclosure against any person in Great Britain, as long as the documents are both relevant and necessary for fairly disposing of the proceedings.

The Employment Appeal Tribunal’s decision in Plymouth City Council v White UKEAT/0333/13/LA

The Employment Appeal Tribunal, chaired by HHJ McMullen, determined that the Employment Judge had applied the wrong test in ordering disclosure of documents, as he had applied the “relevance” test without considering whether the documents were necessary for a fair trial. The correct test, as helpfully laid out by HHJ McMullen in the judgment, is as follows:

  1. The Judge must first consider whether the document sought is relevant
  2. If it is relevant, the next question is whether it is necessary for the fair trial of the case for it to be ordered to be disclosed. Where there is an objection based upon confidentiality of the document in question, the Judge should examine the document itself to determine whether or not it should still be disclosed
  3. If the document is relevant and necessary and is to be disclosed, the Judge should consider whether there is a more nuanced way of disclosing the material so as to respect confidentiality and may decided to order disclosure of the document partially or wholly, normally through redaction of the document
  4. The Employment Judge, upon having read the documents and ordered disclosure, should not conduct the full hearing unless the parties agree to this.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers,, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at

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