Auntie advises on Employment Tribunal Disclosure Obligations

Dear Auntie,

We have just returned from a Case Management Discussion and the Employment Tribunal has ordered that disclosure be carried out over the next month. We have a number of internal documents about the litigation which we would rather not show to the Claimant. Please would you clarify exactly what our obligations are.

Yours,

Dee Scovery

Dear Dee

In Employment Tribunal proceedings each party is under a duty to disclose documents which it has in its possession or control, which are relevant to the case. This means that you do not need to disclose every document you have which refers to the Claimant, but you must disclose any which are relevant to the case – whether or not it helps your defence.  There are harsh penalties for non-compliance, as detailed below.

The duty is to disclose both documents which are in your possession (i.e. those which are in existence and which you can ask your colleagues to find), and those which are under your control (i.e. held by third parties but you can require the third party to return them to you).

What is a “document”?

“Document” has a wide meaning.  It includes anything in which information of any description is recorded.  This means that there is a duty to disclose :

• Emails, letters and all other correspondence (whether internal or external);
• File notes (including hand-written notes of meetings);
• Diary entries (whether electronic or hand-written – these may, for example, demonstrate dates of meetings which are disputed);
  Computer discs / databases;
• telephone recordings (if relevant);
• Versions of all documents, including drafts, even if they have been written on.

To comply with the duty you must make a reasonable search for documents which are in your possession or under your control.  It is important that you do not destroy any documents that you recover as a result of your search.

What is “relevant”?

You need to disclose all those documents which deal with the complaints in the Claimant’s case. Typically, this might include:-

• The terms and conditions of the Claimant’s employment;
• Relevant policies (e.g. grievance procedure, equal opportunities policy, or redundancy procedure);
• The Claimant’s grievance and appeal and all documentation surrounding the way it was dealt with;
• Any performance or redundancy process (including your business case for any redundancy);
• The termination of the Claimant’s employment, including any emails or other documents recording the rationale for that decision.

What does not need to be disclosed?

The following types of documents need not be disclosed:-

• Privileged documents : Documents which come into existence for the purpose of giving or obtaining legal advice are privileged if they are confidential and pass between you and your lawyers
• “Without Prejudice” communications : Communications between parties which have been made with the intention of reaching a settlement are not usually disclosable.  This privilege does not provide a blanket protection as the Tribunal may query whether or not the negotiation was genuine.  If not the documents should be disclosed.

The fact that a document is confidential does not mean that it does not need to be disclosed.  In some circumstances, you can redact (i.e. cover up) confidential parts of documents, where they are not relevant to the Claimant’s claims or where disclosing the document might breach duties of confidentiality owed to another person.

What about documents that turn up later?

The duty of disclosure is an ongoing one.  If relevant documents come to your attention after the deadline for disclosure, you should pass them to the Claimant promptly because the duty to disclose relevant documents does not end on the tribunal’s deadline for exchange of documents.

Consequences of failing to comply with disclosure obligations

Failure to comply with disclosure obligations can carry harsh penalties.  In addition to exercising their power to make an order for one party to pay the costs incurred by the other as a result of the failure to comply with disclosure duties, Tribunals can strike out the whole or part of a Claim or Response form.

The Tribunal could also make an order for specific disclosure if it believes that relevant documents have been withheld.  In that case, the order is likely to take the form of an “unless” order meaning that unless the order is complied with by a certain date, the Claim or Response (as the case may be) will be struck out without further consideration of the proceedings.

See our Top Tips on undertaking the disclosure process.