Although communication between a lawyer and their client is covered by legal professional privilege (and therefore does not have to be disclosed to a court), the same principle does not apply between a member and their union. However, in Dhanda v TSB Bank, the Employment Appeal Tribunal (EAT) held that although this communication is not privileged, it is still confidential and should only be disclosed when necessary to fairly dispose of the proceedings.
Ms Dhanda, a branch manager, left instructions for a maintenance contractor to dispose of two old televisions and some rubbish. In the event, the contractor severed the wires leading to the branch computer server and disposed of it in a nearby skip, leading to serious security issues. After an investigation, Ms Dhanda was demoted and moved to another branch. She submitted a tribunal claim alleging unfair dismissal and breach of contract.
Solicitors for the bank then wrote to the tribunal, asking it to order her union, the TSBU, to disclose all internal correspondence relevant to the case, such as emails, memos, meeting and interview notes. The union objected on the ground that disclosure was only ever necessary to fairly dispose of a case and had to be considered in conjunction with Ms Dhanda’s right to privacy under Article 8 and her right of freedom of association and her right to join a union under Article 11 of the European Convention on Human Rights.
The tribunal granted an order for disclosure of the documents requested from the date of the incident that led to the dismissal to the date the particulars of her tribunal claim were finalised. Documents after that date were subject to litigation privilege, but the ones in the period before were not protected by legal advice privilege, as the union representative was not legally qualified.
It found the documents were necessary for the bank to see any admissions Ms Dhanda may have made to her union regarding the allegations against her, as these were directly relevant to the issue of misconduct and her unfair dismissal claim. It said this was necessary for a fair trial in order to ensure that the parties were “on an equal footing” at the hearing, in line with the overriding objective.
Ms Dhanda appealed the decision, arguing the tribunal had failed to take into account her rights to privacy (Article 8) and trade union rights (Article 11).
The EAT set aside the tribunal’s order, as the tribunal had failed to apply the correct test (Science Research Council v Nassé) for disclosure. The solicitor’s letter asked for what “may contain relevant information” and it could not see how the documentation subject to the order could be relevant, let alone necessary for the fair disposal of the case.
As the material was confidential (albeit not privileged), the tribunal judge should have first carried out an inspection to decide what was relevant. As he failed to do that, the EAT could not understand how the judge reached the decision he did. By ordering disclosure of all the documentation simply to allow the bank to see if any of it was relevant simply amounted to giving them the right to carry out a fishing expedition.
As the EAT determined the tribunal had made an error of law, it was not necessary to consider the relevance of Articles 8 and 11.
Tribunals have the power to inspect correspondence between a union representative and its member(s) to decide if those documents must be disclosed for determining a case. Litigation privilege applies from when litigation is “reasonably contemplated” and applies to confidential documents created for the purposes of litigation.