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Employer Permitted to Access Correspondence Between Employee and Union Representative

on Friday, 02 February 2018.

The recent Employment Appeal Tribunal (EAT) decision of Dhanda v TSB Bank has confirmed that employers may access certain correspondence between a former employee and her union representative in order to defend Employment Tribunal proceedings.

There is not however a blanket right for the employer to access all correspondence regardless of its relevance to the proceedings.

In Dhanda, the Claimant was a branch manager at TSB Bank who was dismissed following alleged gross misconduct. She brought claims for wrongful and unfair dismissal, following which the bank's solicitors wrote to the Claimant's union to request the disclosure of documents in the Claimant's control. In particular the bank sought to obtain all emails, correspondence, memos, meeting or interview notes which had passed between the Claimant and her union representatives.

The union objected on the basis that it was not necessary to fairly dispose of the case. Objections were also raised against potential interference with the Claimant's right to privacy under Article 8 of the European Convention on Human Rights (ECHR) and her right under Article 11 ECHR to join a trade union.

At first instance, the Tribunal granted the bank's application for disclosure of all documentation from the date of the incident until the date the Claimant's particulars of claim were finalised. It was held that these documents were relevant to the fair disposal of the proceedings because the bank would be using them to look for any comments or admissions by the Claimant in relation to the alleged misconduct. Any comments or admissions would be relevant in determining whether the Claimant had committed the alleged gross misconduct and, therefore, whether or not there had been unfair or wrongful dismissal.

The Claimant appealed successfully to the EAT. The EAT felt it was difficult to see how all the documentation passing between the Claimant and her union could be relevant. The question of relevance would depend on whether the material contained comments or admissions by the Claimant in relation to the allegations. The EAT felt that ordering disclosure of all documentation in existence on the basis that it might contain evidence of an admission by the Claimant, would amount to permitting the bank to embark on a "fishing expedition".

Best Practice

Dhanda highlights the vulnerability of claimants who take advice from union representatives or other non-legally qualified representatives. As such communication is not subject to legal advice privilege, a judge may order the disclosure of relevant correspondence as part of Tribunal proceedings.

The case also demonstrates that employers must be sensible in their approach to requests for such information. Employers may not simply request the disclosure of all communications between employees and their unions in the hope that they will find evidence to support their position. Submitting a reasonable and realistic request is more likely to result in the disclosure of the desired documents.

For more information please contact Jessica Scott-Dye in our Employment Law team on 0117 314 5652.

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