The EAT has held in Dhanda v TSB Bank that communications between a claimant and her trade union about disciplinary proceedings leading to dismissal should only be disclosed in tribunal proceedings to the extent that their disclosure is necessary to fairly dispose of the proceedings.
Mrs Dhanda was a TSB branch manager who was summarily dismissed following disciplinary action for gross misconduct. During the disciplinary process, and afterwards in relation to her tribunal claims, she was advised and represented by her trade union. The bank wrote to the union seeking disclosure of all documentation of her communications with her trade union in the course of the disciplinary proceedings (these were not protected by litigation privilege, unlike the documents created after litigation had started).
At first instance the employment judge made an order for disclosure of all the documentation, but the EAT set aside the order. In its view an order for disclosure of all the documentation in existence simply to enable the employer to see whether there might be evidence of an admission by the claimant, was essentially "a warrant to conduct a fishing expedition". The EAT could not see how all the documentation passing between the claimant and her union could be relevant or necessary for the fair disposal of the proceedings. It made it clear that if the employer wished to renew its application before the tribunal, it must identify a list of the disputed factual issues to which the documents sought may potentially be relevant.
Take note: Tribunals should not allow employers access to all documentation between a union and its member in an attempt to find evidence. Dhanda also serves as a reminder that advice from trade union representatives does not attract legal advice privilege (as advice from lawyers does) and so a judge will be able to inspect any correspondence to decide if it is relevant to any of the issues in dispute and can therefore be disclosed.
This article is taken from HR Law – February 2018.
