Race to disclosure

Canadian Imperial Bank of Commerce v Beck

The test for the law on disclosure is whether or not the order to disclose is "necessary for fairly disposing of the proceedings". In Canadian Imperial Bank of Commerce v Beck, the Court of Appeal said that the bank must disclose correspondence (whether confidential or not) between senior management at the bank as the request was clearly not a “fishing expedition”.

Basic facts

Mr Beck worked as head of marketing for the bank from January 2007 to May 2008 when he was made redundant. He claimed race discrimination, arguing that the bank made a “sharp distinction” in the way it treated people of Canadian nationality or origin and/or who were hired in Canada compared to anyone who was not. Mr Beck was German and was hired in London.

He obtained a witness statement from a former senior employee - Ian Howard - which stated that he had “the clear impression” that the bank thought it was more important to look after its Canadian employees. The statement referred to a conversation Mr Howard had with a very senior member who agreed that the bank did feel it had a moral obligation to look after Canadians based in the UK, over and above other employees.

Mr Beck then asked the employment tribunal to order the bank to disclose all correspondence between senior management regarding the decision to offer guarantees and/or redeployment opportunities to bank employees since January 2007, as well as documentation relating to another (non-Canadian) employee’s grievance against the bank.

Tribunal and EAT decisions

The tribunal refused to order disclosure, agreeing with the bank that the requested documents were not relevant to the issues in Mr Beck’s claim.

The EAT, however, disagreed. It said that “In order to show that there is a culture of discrimination, in statutory terms that there is a provision criterion or practice, it is relevant to look at what leading lights within (the Bank) say and do”. It felt that Mr Beck had found a "smoking gun" in the statement provided by Mr Howard and that there might therefore be other documents which also supported his case.

Court of Appeal

Relying on the 1979 House of Lords decision in Science Research Council v Nasse, the Court of Appeal said that the test for the law on disclosure was whether or not the order to disclose was "necessary for fairly disposing of the proceedings". The employment judge had not applied that test as he only considered whether the documents were “relevant”.

The Court of Appeal accepted that “relevance is a factor, but is not, of itself, sufficient to warrant the making of an order. The document must be of such relevance that disclosure is necessary for the fair disposal of the proceedings. Equally, confidentiality is not, of itself, sufficient to warrant the refusal of an order and does not render documents immune from disclosure”. "Fishing expeditions" are, however, not allowed.

In this case, Mr Beck had evidence (in the form of the witness statement from Mr Howard) to support his contention that there was a general policy in the bank to treat Canadian employees differently to non-Canadians.

The documentation requested was therefore plainly relevant to Mr Beck’s case, as he had evidence to support what he was alleging. It was clearly not a fishing expedition in the sense that he was hoping that demanding discovery would turn “something up”. Instead, the Court said that “If there was such a general policy of differential treatment, it was likely to be revealed in communications between the senior executives during the period of decision-making. If there was no such policy, that too is likely to be revealed”.

Finally, the Court rejected the bank’s argument that its IT system worked in such a way that retrieving the documents would be very difficult, saying that “the way in which the Bank chooses to retain and archive its records is a matter for it. If those methods create difficulty of retrieval, that is not something which should be allowed to disadvantage Mr Beck”.