Mr J. Lewis (of Counsel) For the v Respondent — 2021

This was an open preliminary hearing before Employment Judge P Klimov sitting alone on 30 November 2021. The issue was whether the File Note dated 13 February 2020, recording a conversation between Mr D Harrison of the respondent and Ms F McAnaw of BTMK solicitors, should be admitted in evidence at the final hearing. The note was said to be relevant to the claimant's case that the disciplinary outcome had been predetermined, in proceedings concerning constructive dismissal and breach of contract.

The tribunal found that the File Note was a privileged communication, but that it had been disclosed inadvertently first in response to the claimant's DSAR and then again in disclosure in the tribunal proceedings. It accepted Mr Harrison's evidence that the note had been placed in the wrong electronic folder by mistake, and that the respondent's solicitors had not reviewed the DSAR documents before they were sent again for disclosure. Applying the authorities it cited, including CPR 31.20, Rule 41 of the Employment Tribunals Rules 2013, and the Al Fayed and Goddard line of cases, the tribunal held that the claimant, a trained legal executive, would have recognised that he was reading a privileged document and, once read as a whole, that its disclosure was an obvious mistake.

The tribunal also held that it would be unjust and inequitable to prevent the claimant from relying on the File Note. It noted that the document was highly relevant to the pleaded allegation that the disciplinary process was a 'fait accompli' and said that excluding it would leave the claimant unable to rely on evidence central to that case. The tribunal therefore allowed the File Note to be used in evidence. These reasons did not determine the merits of the underlying constructive dismissal or breach of contract claims, which remained for the final hearing.