Disclosure of Information About Staff Who Have TUPE Transferred to Another Employer?
In the case of Birmingham City Council v Bagshaw and others, the Employment Appeal Tribunal has upheld an order compelling the Council to disclose information in an equal pay dispute between its former employees and their new employer.
Legal Background
A third party, who is not themselves involved in an employment tribunal case, can be ordered to disclose documents which are relevant to the issues in the case and necessary to dispose of the case fairly or to save costs. This is called 'third party disclosure'.
Many organisations transfer staff to other employers under TUPE, whether on the sale of part of their business or as a result of an outsourcing or re-tendering process.
The Facts
A group of employees, employed by The Arthur Terry Learning Partnership (the Partnership), brought equal pay claims against their employer.
The employees had recently had their employment transferred from Birmingham City Council by virtue of the TUPE regulations. TUPE caused the potential liability for the employee's equal pay claims to transfer from the Council, to the Partnership.
The employees struggled to particularise their complaints due to the lack of information available to them. The Council held information such as tribunal judgments where the Council had been the respondent in previous equal pay litigation, and job evaluation studies establishing whether certain jobs were rated as equivalent under the Equality Act 2010.
The employees subsequently sought a third party disclosure order against the Council to try and obtain this information. The Council described the request as a fishing expedition and resisted the application.
Employment Tribunal
The employment judge, an equal pay specialist, was familiar with past equal pay claims where the Council had previously been a respondent. The judge recalled that the judgments and orders in those cases made detailed findings of facts which would be highly relevant to the employees' claims and therefore granted the order for disclosure.
The Council appealed arguing that the judge had failed to correctly apply the test for considering whether to order third party disclosure.
Employment Appeal Tribunal (EAT)
The EAT dismissed the appeal, finding that the employment judge had correctly applied the tests of relevance and necessity.
Best Practice
When staff TUPE transfer to another employer, the liability for most legal claims connected with their employment transfer with them. This case is a useful reminder that an outgoing employer will continue to hold information relevant to claims that relate to events occurring during their time as employer.
Who is financially liable for such claims and how the outgoing and incoming employer should co-operate in the event of litigation, are both matters that can be dealt with in the relevant sale and purchase agreement or outsourcing / re-tendering documents.
The case is also an example of when early third party disclosure might be warranted, particularly in equal pay litigation involving the public sector.