Power of tribunal to order party to answer questions confirmed

The EAT has recently ruled that it is within an employment tribunal’s power to require a party to answer questions. However, they need to be necessary for the “fair disposal” of the proceedings, as we explain below.

Background

Employment tribunals frequently make orders for the disclosure of documents under their generic case management powers. However, up to now, there has been little guidance on how their powers to direct a party to provide information should be used. It is recognised that this can be particularly important in discrimination cases, where, as the EAT put it, “aspects of the wider workplace landscape may sometimes be said to be relevant or probative”.

Until 2014 there was a statutory questionnaire procedure which claimants could use in discrimination cases. While employment tribunals could not compel employers to answer these questions, in some circumstances they could draw an adverse inference from failure to respond. 

This case illustrates that even in the absence of a statutory procedure, employers can still face a situation where there are adverse consequences for failure to answer questions. 

Facts

Mr Bari was disabled and was in dispute with his employers over his shift patterns. He argued that they had an obligation to accommodate his preferred working pattern because of their duty to make reasonable adjustments. To support his claim, he asked his employers to answer eight questions. These were primarily directed at finding out whether other disabled staff had been employed in similar roles, and if so whether the employers had made any adjustments, including to their working hours.

The employment judge declined to make an order requiring the employers to answer these questions, a decision which she refused to change following an application for reconsideration. She explained: “It is not clear how the information he has requested will assist the tribunal. The Claimant's claim for reasonable adjustments relates to his particular situation and circumstances.”

Appeal

The EAT upheld the claimant’s appeal against the employment judge’s ruling, and remitted the issue to a new judge to make a fresh ruling.

It explained that the criteria for deciding whether to order a party to answer a question are the same as those that apply in relation to an order for disclosure. In other words, the answers to the question must be capable of advancing (or undermining) the pleaded case of either party and must also be “necessary for the fair disposal of the proceedings”.

Applying this test will always be highly fact-specific. For that reason, it may be easier to explain what the EAT said about the circumstances in which employers will not be ordered to answer questions. The best-known example is where the claimant is on a “fishing expedition” (ie where they are using the questions to establish the basis for a claim, rather than supporting a case they can already make). Other examples include where the answers to the questions posed will not advance the claimant’s case, or where the answers would be included in documents the employer is already required to disclose.

Conclusions

We don’t yet know whether the tribunal will order the employers to answer Mr Bari’s questions. One has a sense that it will be relatively rare for an employment judge to be convinced that the criteria for ordering an employer to answer a specific question have been met - they are more likely to be comfortable with ordering the provision of documents.

However, this case illustrates that in appropriate circumstances the tribunal does have power to order a party to answer questions, and employers need to prepare for that eventuality. And, of course, the same goes for claimants.