1. Taking first what I consider might be described as the more peripheral arguments pursued by the Claimant in this regard - grounds 2 and 4 of the Notice of Appeal - I do not see that these provide stand-alone bases of challenge. Whilst I can see how the Claimant will no doubt rely on the emails of 17 and 18 July 2013 in support of his case - specifically to counter the suggestion there were two rounds in the auction - I cannot see that the email evidence shown to me is all one way on this point, nor can I see how these emails would enable the Claimant (or indeed the ET) to go behind a proper contention that there was no further documentary material on this point.

1. As for the objection that the ET failed to more fully set out the Claimant's arguments and evidence, whilst I appreciate that some three days were allowed for the disclosure application, the ET was not obliged to give such full reasoning and explanation as might have been required in a Judgment on a Full Merits Hearing. This was a case management decision, and the Employment Judge continues to exercise case management powers on an ongoing basis in the interlocutory stages of these proceedings. That being so, I do not see that the ET was obliged to descend into greater detail as to the Claimant's evidence or submissions. If the reasoning fails to take into account a relevant matter or has proceeded on an erroneous basis because of a misunderstanding as to what was relevant, that would give rise to a substantive point of complaint; I do not accept that a stand-alone ground of appeal arises in this respect.

1. I return therefore to the substantive points being made in respect of these documents. The first question for me is whether the ET reached a perverse or impermissible conclusion in respect of the documents sought under paragraph 32.2 of the summary; its conclusion being that the documents sought do not and could not exist. In so concluding, the ET's refers back to its earlier reasoning in respect of the documents sought at paragraphs 18 and 19 of the summary, which suggests it took the view that the documents would be disclosable if they existed (see the ET at paragraph 10). The documents in question were the final bid letters and emails in connection with the auction of S's loans. To conclude that no such documents existed may seem somewhat surprising, and the Respondent accepts that documents of this nature do exist but not such as to evidence a successful gazumping bid by the Respondent.

1. On this point, I agree with the Claimant; that unfairly misstates his case. He was - on his case - blowing the whistle on what he contends was the Respondent's improper use of information obtained from M in making its separate bid. The number of bids made and their timing, whether successful or not, is relevant to the question of whether the Claimant had a reasonable belief in this regard. The ET's reasoning makes no sense on this category of documentation, and I consider that the Claimant has made good his case that disclosure of this category of documentation is necessary to a fair trial of the issues in this matter, specifically as to the reasonableness of his belief in the matters on which he was, on his case, blowing the whistle; this is, therefore, a properly disclosable category of documents. I duly set aside the ET's Order in respect of the documents specified at paragraph 32.2 of the summary and order that these be disclosed.

1. I then turn to the documents sought under paragraph 32.3. In my judgment, the position in respect of these documents is different. The ET here seemed to have in mind the broader issues and had received evidence as to the searches that had been undertaken and what had been retrieved as a result. Having heard that evidence and considered these issues over a broader period of time than that afforded to me, the ET was satisfied there was nothing left falling within this category that it could order to be disclosed. Can I say that was an improper conclusion? I cannot see that I can, and Mr Massarella has not persuaded me otherwise. I dismiss the appeal in this respect.

1. In respect of the redundancy exercise, the Respondent contends that it keeps its headcount requirements under constant review and in 2014 it conducted headcount reviews, first in March and again in September, both resulting in dismissals for redundancy. It says that, in the September review relevant to the Claimant, it carried out a comparison of the Claimant with the only other member of the team focused on the same kind of clients but, taking into account client complaints regarding the Claimant, considered that he should be selected.

1. The Claimant puts the reason for his dismissal in issue. His case is that there was no genuine redundancy situation; work of the particular kind he was employed to carry out had not and was not expected to cease or diminish. Another employee - Ms Boddy - was recruited into the department at the time of the headcount reduction exercise, and another employee was deployed into the department almost immediately after the Claimant left. More generally, the department was thriving financially on a low headcount, there had been no redundancies in the department in the March redundancy exercise. The Claimant contends the September exercise was a sham simply designed to get rid of him.

1. In respect of the issues relating to the redundancy exercise, specifically the existence of a redundancy situation, the Claimant sought specific discovery of the following documents: under paragraph 18.1 of the summary before the ET, performance metrics such as turnover, numbers of deals, decline in profit et cetera; and, under paragraph 19.1 of the summary, documents showing a group-wide headcount reduction exercise in September 2014 and/or rationale for the impact specifically on the group in which the Claimant worked.

1. The appeal before me is concerned with the documents under paragraph 18.1. The Claimant does not pursue an appeal in respect of those under paragraph 19.1. The ET's reasoning, however, comprehends both categories of document. Accepting that the documents under paragraphs 18.1 and 19.1 would be disclosable if they existed (see paragraph 10 of its Reasons), the ET apparently accepted the Respondent's statement that they did not "as no written exercise was carried out in relation to the business case for redundancy".

The Claimant's Case

1. Acknowledging that in a normal redundancy dismissal case the ET would not investigate a business case as to whether there needed to be any redundancy, the Claimant contends, first, where the reason for dismissal is put in issue there is no such bar on the ET's considering whether the purported redundancy situation is genuine (Cook v Tipper [1990] ICR 716 at 729E). Second, the performance metrics documents (specifically identified as all records and reports showing monthly financial performance of the group for 2013) were plainly relevant to this question, as the ET recognised: if it existed, it was disclosable. The Respondent had not in fact said it did not exist; its response had been that any evidence on this to the extent this issue is relevant will be provided by way of witness evidence. Third, moreover, it would be hard to understand how no documentation of this nature could exist; it comprised general financial records, not specific to the redundancy exercise, relevant to the Claimant's argument that there was no business case for his redundancy. It was necessary for him to be able to test the Respondent's assertions on the reason for his dismissal. The ET erred in considering these documents could not be disclosed because they did not exist. It might have reached that conclusion in respect of the documents at paragraph 19, but it was not open to it to do so in respect of those at paragraph 18.1. Having ruled they were otherwise disclosable, the ET should have so ordered.

The Respondent's Case

1. For its part the Respondent accepts that the ET could not have declined the application under paragraph 18.1 on the basis that the documents in question did not exist. Plainly, they did. The ET's reasoning in that regard, however, had to relate to the documents at paragraph 19.1. It could be taken that the ET had declined to make the Order sought under paragraph 18.1. First, because it had made the general observation (see paragraph 9) that unless expressly stated disclosure was not permitted. Second, because it had later (see paragraph 20 of its Reasons) refused to order disclosure dealing with the general level of business.

1. At the worst, the ET had failed to deal with the specific application, and there was a lacuna in the reasoning. If so, the EAT should deal with the point itself. The short point was that disclosure was simply irrelevant. The Respondent was not saying it had undertaken this redundancy exercise because there was poor performance. It arose from a general efficiency review; performance metrics were not relevant to that. Accepting the Claimant was saying the redundancy exercise was a sham, it was not necessary to his case to see the performance data.

The Claimant in Reply

1. Paragraph 20 of the ET's Reasons was referring to a very different matter, relating to performance issues, and the ET's reasoning could not simply be read across. The relevance of the disclosure was obvious, and the EAT could itself so conclude.

1. This is a point that troubles me. The ET's reasoning seems to expressly refer to paragraph 18.1. In explaining the decision not to order disclosure, the ET apparently considered these documents were disclosable but disclosure should not be ordered because the Respondent had said they did not exist. On the face of the ET's reasoning on that basis, it would therefore seem that, if such documents do exist, disclosure should be ordered.

1. I have, however, been persuaded by Mr Stilitz QC that cannot be what the ET in fact meant. Although under the subheading referring to paragraph 18.1, the reasoning specifically speaks of the lack of written exercise in relation to the business case for redundancy: the issue relating to paragraph 19.1. I accept the Claimant's point that he is not contending that the decision to make a redundancy was simply unfair but is putting the very reason for his dismissal in issue: the case is put squarely on the basis that the purported reason for his dismissal - redundancy - was a sham. That being so, inevitably the ET will have to look into the plausibility of the reason relied on by the Respondent, and that takes this beyond the scope of the issues considered in the standard unfair dismissal case. That said, the Respondent's case is not that the redundancy was due to poor performance. Even as compared to the earlier redundancy exercise in March 2014, it does not rely on a decline in performance, but simply on an efficiency review leading to a reduction in headcount. That is what gave rise to the redundancy, not any background performance issue.

1. That being so, I agree performance metrics are indeed irrelevant to the case on sham. I am not satisfied that the ET properly dealt with this question, but I am satisfied, as both parties have allowed in submissions, that I can do so now. I do not allow the appeal and the disclosure application in respect of the documents under paragraph 18.1, albeit for different grounds to those set out in the ET's Reasons.

1. Next, under this heading, the Claimant seeks disclosure of documents going to the identification of the pool for selection, specifically the exclusion from that pool of Ms Boddy. He seeks:

"All compass reports recording CB's sale credit data for 2014 (to 24 November 2014) by account and type of account."

1. The Respondent's case was that selection of the pool for redundancy purposes was by reference to directors who focused on distressed as opposed to performing debt. That meant the pool comprised two members of the team: the Claimant and Mr Erenstein. The Claimant's case, on the other hand, was that the two types of account were interchangeable. Specifically, the exclusion from the pool of Ms Boddy, who had recently been recruited into the department, was a construct. To make good his case in this regard and disprove the Respondent's case that his role and that of Ms Boddy were different, the Claimant sought disclosure of documents showing the accounts he, Mr Erenstein and Ms Boddy worked on, specifically "all compass reports relating to CME's and CB's sales credit data".

The Claimant's Case

1. Although the Respondent had accepted that the Claimant's dismissal was procedurally unfair, that did not mean this was not a relevant issue. The question remained as to why the Claimant was included in the pool when Ms Boddy was not. The Respondent's response to the specific disclosure request in this regard had been that:

"CB's recruitment was not relevant to the issues in the case. CB performed in a different role from the Claimant."

1. That merely restated the issue. It simply underlined the necessity of the disclosure. The ET had refused the application for this disclosure on the basis that (paragraph 15):

"15. … disclosure about the destination of the Claimant's former accounts and oral evidence on this point should be sufficient. …"

1. Whilst the disclosure showing the allocation of Ms Boddy's accounts to Mr Erenstein after she left the Respondent's employment was helpful, it was perverse to consider disclosure of documentation postdating the Claimant's departure would show the position at the time the pool for redundancy was created.

The Respondent's Case

1. The Respondent contends, on the contrary, that the Employment Judge had clearly concluded that the extent of the disclosure sought by the Claimant was unnecessary and it would be unreasonable to require the Respondent to carry out any more extensive search as requested. The Judge considered the disclosure already ordered, together with oral evidence, would be sufficient. Whilst the Claimant might not agree, that was a permissible conclusion. More specifically, the Respondent says it has disclosed relevant documentation relating to the assignment of accounts to Ms Boddy, the Claimant and Mr Erenstein both before and after the Claimant's redundancy, specifically at the time of the identification of those who should go into the pool for selection. To the extent this did not provide details of the type of work as opposed to the identification of the particular accounts, that was because that could not be disclosed in document form as the Claimant sought.

The Claimant in Reply

1. Answering the Respondent's submission, the Claimant observes that the evidence he gave before the ET (see paragraph 8 of his witness statement in particular) was that the Compass printouts would provide the degree of specificity required.

1. The issue in this regard is not what happened post-headcount reduction, i.e. after the Claimant had been dismissed; the Respondent may well have then had to carry out some form of reorganisation and require particular members of the team to take on different types of work. The issue is what the position was at the time the selection process was undertaken, the time at which the pool for selection was defined and created. Or, rather, the issue for me is whether the ET demonstrably took into account all relevant matters in considering the disclosure application in this regard? I do not consider it can be said that it did. It is the position prior to the Claimant's redundancy that is in issue, not what happened to the work thereafter and the ET's reasoning fails to comprehend this point.

1. I then ask myself whether what Mr Stilitz QC has told me on instructions is sufficient. Given the evidence before the ET from the Claimant's witness statement, however, I do not think it can be. Given the material I have, which is obviously limited, I therefore allow the appeal on this point and order disclosure of the Compass reports for Ms Boddy for 2014 as sought.

1. The Claimant also sought disclosure of internal or external documents for the period 16 September to 14 November 2014 relating to his dismissal, the circumstances for it and the reasons for it. The ET records the position under this request at paragraph 30 of its Reasons. The Order made specifies that the 1,122 emails to be reviewed are those referred to at paragraph 6.5 of the witness statement of Ms Drummond. Ms Drummond is a Director of Epiq, an eDiscovery Operator engaged on this case by the Respondent. Paragraph 6.5 of her statement describes how searches using the terms "AG" and "AD", as the Claimant had requested, had been carried out against certain custodians (account holders) as detailed in the evidence of Ms Burgemeister. Referring back to Ms Burgemeister's evidence, it is apparent that the 1,122 documents she and therefore Ms Drummond were referring to in fact related to the search carried out for "AG" or "AD" near the term "Apollo". That in turn referred to a different issue in the case, the Claimant's removal from the account Apollo, part of his detriment case.

1. So, although the ET apparently intended to make an Order requiring the Respondent to review a greater number of emails, messages and so on relating to the period in question - that is, the period immediately following the Claimant's dismissal - it in fact erroneously ordered that the Respondent review emails, messages et cetera relating to a different point and time period.

1. The Respondent accepts something went wrong here. Although the ET had explained (see paragraph 9 of its Reasons) that unless it was clear that the ET had decided to make an Order of disclosure it could be taken that it had declined to do so, the Respondent accepted an error had arisen in the ET's reference on this point; it could not be said that the ET had not intended to make an Order for disclosure.

1. On the other hand, the Respondent had carried out the disclosure exercise in respect of the two specific allegations made in the ET1 relevant to this point, and nothing had been discovered of relevance. More generally, the Respondent had undertaken a review of the documentation as referred to in Ms Burgemeister's statement at paragraph 10.6, which included documents relating to the Claimant and search terms such as "dismiss", "redundant" et cetera.

1. In reply, the Claimant observed that the difficulty with that is that the search Ms Burgemeister referred to covered the wrong dates. It related to the period prior to the Claimant's dismissal, whereas he was seeking disclosure in the period immediately thereafter.

1. It seems clear that the ET intended to order disclosure on this issue. The reasoning, as the Respondent has accepted, does not suggest that the application was being refused (and one can see why it would not be). The ET misunderstood the reference in the table but did not find against the Claimant on the argument. It seems to me that I must respect that. I understand the difficulty now in making clear the Order that I consider the ET must have intended, given the stage now reached in these proceedings and the work that will have to be undertaken. That, however, cannot be said to be the fault of the Claimant (nor of the EAT). The terms of the search seem to me to be proportionate given the issues in this case, and indeed that must be the conclusion that the ET itself reached. For those reasons, I therefore also allow the appeal in this regard.