What duty do parties to Employment Tribunal (Tribunal) litigation have when it comes to disclosing evidence?
What is Standard Disclosure?
Standard disclosure describes the obligation on parties to Tribunal proceedings to disclose documents to the other party that are relevant to the issues of the proceedings. This duty exists throughout the proceedings until they have ended. Disclosure is usually ordered by way of a Case Management Order (CMO) provided by the Tribunal, following a Preliminary Hearing.
Disclosure in the Tribunal is underpinned by the Civil Procedure Rules (CPR) which sets out the obligations for the parties and their representatives.
Disclosable Documents
A party to proceedings has a duty to carry out a reasonable search for relevant documents and to disclose those documents.
Disclosable documents may include emails, WhatsApp or text messages, calendar invites, social media posts, photos, meeting notes or recordings, documents (such as employer policies, payslips, employment contracts, letters and password-protected documents), and others.
Electronically stored information (ESI) is the dominant source of materials used in Tribunal proceedings, which isn’t surprising, given the extensive use of technology in workplaces. Be mindful of being efficient when retrieving ESI so that costs are proportionate. Using efficient document management software is a good way of aiding this.
Relevant Documents
As mentioned above, parties have a duty to disclose ‘relevant documents’, for inspection. Relevant documents include documents which either support or adversely affect either party’s case. You may feel that you do not wish to disclose certain evidence which may hinder your case, however, they must still be disclosed if relevant and not subject to privilege (explained further below). This applies to all parties.
You must also not destroy or unreasonably withhold documents from inspection, as any relevant documents should be preserved during the entirety of the proceedings.
What is a ‘Reasonable’ Search?
Your duty as a party to proceedings includes carrying out a reasonable search for documents that are or have been in your possession or control. This can, and often does, require contacting third parties (for example, healthcare experts for medical / occupational health reports) to retrieve relevant documents. What is reasonable will depend on the facts of the case but by no means requires an exhaustive search for evidence. A Tribunal will look at the number, nature, significance, and ease and expense of accessing evidence.
Non-disclosable Documents
Some relevant materials are privileged, meaning that they do not need to be disclosed. There are three types of privileged documents: legal advice privileged, litigation privileged and without prejudice privilege. Legal advice privileged documents include correspondence between you and your lawyer. Litigation privileged documents include documents and communications with third parties where the communication or document was created for the dominant purpose of seeking or obtaining evidence for your case where litigation is anticipated or ongoing. Without prejudice correspondence, sometimes accompanied by ‘save as to costs’, usually include negotiation correspondence (made orally or in writing) between parties in a genuine attempt to settle the dispute between them. ‘Save as to costs’, means that the without prejudice correspondence is admissible when assessing costs.
If in doubt, it is advisable to send to your legal advisor all relevant evidence that you have and they can then assess whether any are subject to privilege, for you. This is to ensure that you comply with your obligation of disclosure and avoid the risks of being in breach of a Tribunal’s order, or your duty of disclosure, which can have potentially serious consequences.
Specific Disclosure
Where there is doubt that either party has disclosed all relevant documents during the standard disclosure procedure (explained above), it is possible to request that the Tribunal orders specific disclosure of certain documents which are identified as not having been disclosed.
If you would like support with prospective or ongoing Employment Tribunal proceedings or have specific queries regarding disclosure then please do not hesitate to contact our Employment Law team who will be happy to assist. You can contact us by phone on: 0345 450 5558 or by email: [email protected].
This article was co-written by Joe Nicholls, partner, and Tegan Forwood, solicitor apprentice, in our Employment team.