Employment Cases Update

Santander UK Plc and others v Bharaj UKEAT/0075/20/LA

Date published: 22/12/2020

Appeal against the ET’s Case Management Order in respect of disclosure. Appeal allowed.

The Claimant resigned from her employment with the Respondents after six months, and she brought proceedings in the ET in which she alleged automatic unfair constructive dismissal on the basis of a number of alleged detriments which she said amounted to direct sex discrimination, victimisation and harassment. The Respondents disputed all of the Claimant's whistleblowing claims and conducted an investigation. The Claimant sought disclosure of the investigation documents, on the basis that they would almost certainly include documents which were disclosable in relation to her whistleblowing claims. After a preliminary hearing at which a general order for disclosure within a specified time was made, the Claimant applied for specific disclosure of the investigation report; the ET allowed the Claimant's application, and stated that the general order extended to "the documents related to the grievance where they are relevant to the issues in these proceedings". The Respondents appealed on grounds including that the ET failed to apply the test in Canadian Imperial Bank of Commerce v Beck [2009] IRLR 740 and to decide whether the investigation documents were likely to include documents which were disclosable.

The EAT held that, while the ET had correctly concluded that the Respondents' approach to the issue of "relevance" was too narrow, it had erred in law by not going on to make its own finding on the issue of whether there were likely to be disclosable investigation documents. Accordingly, the Respondents would be ordered to disclose to the Claimant any disclosable documents relating to the pleaded protected disclosures.

Read the full text of the judgment on BAILII or download the file by clicking the link below.