Employment Appeal Tribunal Overturns Disclosure Decision in Footballer's Discrimination Claim
A crucial disclosure ruling in a discrimination case against QPR and others has been overturned by the EAT.
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Tribunal's Error in Disclosure Application
The Employment Appeal Tribunal (EAT) has overturned a previous Employment Tribunal decision regarding the disclosure of documents in a case brought by a former professional footballer, Mr A Bansal-McNulty, against Queens Park Rangers Football and Athletic Club and others. The claimant alleged race discrimination and victimisation during his time playing for Crawley Town FC whilst on loan from QPR.
Central to the appeal was the claimant's application for disclosure of a bundle of documents prepared for a Football Association (FA) disciplinary investigation into the conduct of the coach, the Second Respondent. The initial Employment Tribunal had refused this application, and the claimant appealed on several grounds. These included arguments that the judge failed to apply the correct test for specific disclosure, wrongly considered the application as being against a non-party, and that the decision was perverse.
EAT's Findings on Disclosure and Procedural Fairness
Her Honour Judge Tucker, delivering the EAT's judgment, found that the Employment Judge had erred in his approach to the disclosure application. The EAT highlighted that the judge failed to consider the initial requirement of whether the documents sought were likely to support or adversely affect the case of any party. This crucial first step, established in case law such as Flood and Bagshaw, was omitted.
Furthermore, the EAT noted that it was unclear from the judgment whether the Employment Judge had correctly identified the application as being against a party to the litigation, rather than a non-party. This, coupled with the fact that the Second Respondent had not complied with a prior tribunal order for disclosure, contributed to the successful appeal.
The judgment also addressed the issue of "collateral use" of documents under Civil Procedure Rules (CPR) 31.22. While acknowledging the FA's stance on disclosure, the EAT indicated that proceedings before the FA may not strictly fall under the ambit of CPR 31.22. Regardless, the tribunal has the discretion to allow disclosure or grant permission for such use where justice requires.
The appeal was allowed, and the case will proceed with further consideration of the disclosure issue. The EAT emphasised the importance of parties complying with tribunal orders and acting cooperatively in the disclosure process, particularly in discrimination cases which can be challenging to prove.
Read the entire judgment here: [Mr A Bansal-McNulty v (1) Queens Park Rangers Football and Athletic Club Ltd & (2) Mr J Yemms & (3) Crawley Town Football and Social Club Limited EAT 120]
