Employment Tribunal disclosure – what’s in and what’s out

One of the key things that can make or break your defence to an Employment Tribunal claim is the quality of your supporting documentation (or the lack of it!). However, knowing what you should and should not disclose is not always easy. We shed some light on this tricky area.

Disclosure in the Employment Tribunal

If you are unfortunate enough to receive an Employment Tribunal claim (known as an ET1), the first priority is always to submit your response in time. The time limit is a very strict 28 days so it is important to take advice as early as possible. Please contact us if we can help – we have years of experience in handling claims, and we’re always happy to have an initial chat about a Tribunal matter without charge.

Although usually disclosure will be one of the standard orders made by an Employment Judge as part of getting the parties ready for a hearing, it is worth passing the relevant documents to your legal adviser at the outset as they may be highly relevant to preparation of your response to the claim (also known as the ET3).

In terms of the Tribunal ordering disclosure of documents to the other side, the practice varies between Tribunals, but often there is a requirement for the parties to exchange Lists of Documents. Following exchange of the Lists, each party has the ability to request copies of the documents in the other party’s list. The documents on the Lists will usually go on to form the bundle of documents which is a paginated folder in chronological order that all parties refer to at the Tribunal hearing.

What should go in your List of Documents?

Your list should include everything which is covered by your duty of disclosure. The duty of disclosure applies to all documents in your possession or control which are relevant to the issues to be determined by the Employment Tribunal (subject to some exceptions, which are listed below). Crucially, this applies regardless of whether the documents help or hinder your case.

Usually you will have a good idea of the main documents in the case – for example, in a conduct dismissal you would expect to see the notes from any disciplinary hearings and appeals, plus a copy of the disciplinary procedure and any letters sent to the employee as part of the process. However, it is important that you give thought as to what other documents are relevant, and this requires a good understanding of the issues being raised in the claim. If you are not sure whether something is relevant or not, then it is best to take legal advice.

For employers, the question of whether something is in your ‘possession or control’ applies across the organisation. Therefore you need to ensure that you have made enquiries of your colleagues. If documents are held outside the organisation but you can require the third party to return them to you (such as financial reports held by your accountants) then those will be covered by the duty of disclosure as well, provided that they are relevant of course.

It is important that managers and HR are aware of the duty of disclosure at all times when carrying out their day to day duties – we have dealt with several cases where internal emails making inappropriate comments about an employee or an internal process have come to light, which can significantly weaken an employer’s position at a later stage, such as:

“To: HR

From: Jane

Please help me – Barry’s performance is terrible and he’s driving me mad! Can’t we make his role redundant or something?”

The duty of disclosure doesn’t just apply at the point when you exchange your List of Documents – it applies throughout the Tribunal process. Sometimes issues can be clarified as the proceedings go on, and documents may become relevant when initially they had not been. Those documents should then be disclosed at that stage.

Exceptions to the duty of disclosure

• Without Prejudice documents

If there have been settlement discussions, or if a Compromise Agreement has been offered, then these will usually be ‘without prejudice’. This means that an Employment Tribunal should not know about them.

• Privileged documents

There are different kinds of privilege. One of the main types is ‘legal advice privilege’ which means that you are not required to disclose any documents to or from your legal adviser. It is important to note that a ‘legal adviser’ for this purpose can only be a member of the legal profession – see our article on this here.

Another type of privilege is ‘litigation privilege’ which protects confidential documents prepared for the purpose of the proceedings. So for example the drafts of your response to the claim or your draft witness statements will generally be protected from disclosure because of litigation privilege.

Do we have to disclose confidential information?

The duty of disclosure applies to documents whether they are confidential or not. However, in some circumstances it may be possible to cover up irrelevant or confidential parts of documents (this is called redacting), or by anonymising them. It is always best to take advice to see whether documents could be redacted or in fact whether they are actually relevant to the issues to be determined by the Tribunal.

What if the other side haven’t disclosed a relevant document?

If you believe that the other party hasn’t disclosed something, it is best to ask them for it in the first instance. If you don’t get a satisfactory response, you can apply to the Tribunal for an order for specific disclosure. The Tribunal will want to know why you consider the document to be relevant.

If either party fail to comply with their duty of disclosure, the Tribunal has the power to make an order for costs and in appropriate circumstances the Tribunal can even strike out a party’s claim or defence.

Our advice

A paper trail should be kept as you go along, not in a panic when a Tribunal claim lands on your desk. Notes should always be kept of meetings and discussions, but these don’t need to be verbatim – a summary is usually fine, but should be prepared as soon afterwards as possible. Copies should be kept of all relevant correspondence and emails, and it makes life much easier if these are filed together at the time, to save having to trawl through at a later stage. Having a good record of events and keeping your documents organised saves time and legal costs. And if possible, avoid creating documents that you wouldn’t want coming back to haunt you later!