We have previously looked at the duty to disclose documents in proceedings in the Employment Tribunal (the article can be found here), and basically the duty is to disclose all documents which are relevant to the issue, whether they support your case or not. There are some exceptions, and these were detailed in our previous article.
In the recent litigation involving Metropolitan Police officer Carol Howard’s claims of discrimination against the Metropolitan Police, it emerged that a report produced by the Police had allegedly been altered. Carol Howard had raised issues of discrimination internally and an investigation was carried out which led to the production of a report into the allegations. This report was disclosed during the Tribunal process. However, other documents which were disclosed showed that the report had been altered. The Tribunal ordered that all the previous drafts of the report should be disclosed.
This begs the question: should employers keep all the old drafts of documents relating to disciplinary or grievance investigations? It is of course common for documents to be amended between the production of a first draft and the final version, and sometimes the changes are just correcting typos, but sometimes they are far more significant. There are no clear legal rules on whether to retain or delete previous drafts of a document which has been prepared as part of an internal disciplinary or grievance process. Normally, it would be acceptable to delete drafts that have been replaced by a final version. However, that would not always be the case. Where legal action has been instigated by the employee and the documents may form part of the evidence in the case, they should not be destroyed.
Employers in any doubt as to what they should and should not keep should seek specialist legal advice before destroying documents, and ideally before creating documents that could subsequently cause them issues.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).