Disclosure of unredacted documents ordered

In Virgin Atlantic Airways v Loverseed and others, the Employment Appeal Tribunal upheld a case management order requiring disclosure of an unredacted financial document created by the Respondent.

The Respondent made the Claimant pilots redundant. This happened after the COVID-19 pandemic caused reductions to air travel. The Claimants disputed the fairness of their selection. They claimed selection criteria were not clear. They said the process was designed to select those in the ‘middle bracket’ of pilots - the most expensive but not the longest-serving. Some claimed indirect age and or sex discrimination as well as general unfairness.

As part of the disclosure process, the Respondent disclosed different versions of an internal document titled ‘Velocity 21’. It contained financial information about pilot costs. It included comparisons - looking at the savings from changes to terms and conditions or from reducing numbers. The Respondent redacted pilot costs and potential savings in these documents. They claimed that the redacted information wasn't needed for fair disposal of the proceedings.

The Claimants made an application for specific disclosure of the unredacted documents. The tribunal granted this. They did so because the unredacted documents were relevant to fair selection. They were also relevant to any argument of justification for the indirect discrimination claims. The Respondent appealed.

The EAT dismissed the appeal. It held that rule 31.6 of the Civil Procedure Rules requires a party to disclose not just the documents it relies on or which support any other party’s case. It must also disclose those that harm their own or the other party’s case. The EAT found that the documents were relevant. They would have a bearing on the issue of what the selection criteria were, whether they were fair criteria and whether they were influenced by costs savings (potentially harming the Respondent’s pleaded case that they were not).  

Thanks to Daniel Barnett