These top tips follow on from the guidance in this month’s Aunty Advice which details the nature of an employer’s obligation to disclose relevant documents as part of the employment tribunal litigation process.
Top tips for dealing with disclosure
- Think about disclosure early on in the Tribunal process. Sort all the relevant documents in your possession into chronological order. Make a list of them.
- Consider whether any documents are privileged and should not be disclosed.
- Consider whether any of the documents you have to disclose will make it difficult for you to successfully defend the claim at the hearing. Some such documents may be capable of being put in their correct context by your witnesses so that they are not as problematic as they first appear.
- Take advice on how your disclosure documents affect your prospects of successfully defending the claim in tribunal.
- Consider whether your prospects are such that you should consider taking a pragmatic view on settlement before incurring significant additional costs.
- Consider whether there are any particular documents or types of documents that you want from the employee / their solicitor. Top of the list is likely to be their mitigation documents so you can see whether they have been trying to find another job and, if they have been successful, how much they are now earning. This will help you calculate your potential exposure if you lose in Tribunal.
Top tips for keeping to a minimum the documents which may have to be disclosed
- Ensure that the circulation of any legal advice is restricted. Circulate it on a “need to know” basis. This is important as the protection which privilege offers can turn on the meaning of “client” and there have been cases where this term has been interpreted very narrowly.
Discourage unnecessary documenting of internal analysis of privileged advice (e.g. in internal emails, memos or minutes of meetings). Whilst the advice is privileged, any written analysis is unlikely to be so.
- Ensure that those involved in the litigation are aware of the risk inherent in document creation and distribution (see tips below). Avoid creating unnecessary documents as documents which are created which are not protected by privilege will be disclosable. If you need to discuss privileged advice with any third parties then consider doing so verbally or by phone. If you do need to document such discussions then mark your notes as “Privileged and Confidential”.
- Produce as little as possible in writing, particularly strategic advice and preparatory drafts and consider whether it is appropriate to restrict reports to verbal summaries. This may not always be practical.
Tips for day to day work and management of staff
On a more general note, we would give the following tips to managers and to HR teams:
Tip 1 Understand disclosure obligations (see guidance in this month’s Aunty Advice)
- Think first, especially when emailing – be aware that emails can come back to haunt you.
- Documents and emails are disclosable in litigation and in response to data subject access requests.
- Documents and emails passing between lawyers and clients are usually subject to legal privilege and therefore not disclosable.
- Be careful, especially with draft documents – these are disclosable if not subject to legal privilege.
Tip 2 Be able to justify decisions
- Make sure you have objective reasons which are thought through, not arbitrary.
- Ensure you have documentary evidence supporting decisions.
Tip 3 Keep a paper trail (of the right kind)
- Appraisals and recruitment forms – use them and don’t simply pay lip service to them; they can be useful later on; don’t shy away from delivering tough messages when necessary.
- Make good, contemporaneous and dated notes; record decisions and significant information carefully. It is no use creating self-serving documents long after the event to support your decision or your view of a particular event or matter; the meta-data in the document will reveal when it was created.
- Think about how someone might interpret your notes in the future.