In this edition of Joelson’s Employment Tribunal Tactics and Tips series, we look at what happens if the claim continues towards final hearing – the disclosure process and preparing the final hearing bundle.
Disclosure and agreeing the employment tribunal bundle
Disclosure is an important part of the employment tribunal process and a date for when this process should take place is usually set early on as part of the case management order. Disclosure is the process whereby both parties must disclose all relevant documents that they have in their possession, custody or control – regardless of whether such documents help or hinder their own case.
It is advisable for employers to be mindful and plan for the disclosure process as soon as an ET1 is received as disclosure can sometimes be a cumbersome task. Employers should commence the process of compiling all relevant documentation as soon as possible. Care should be taken to preserve documentation and to consider where relevant evidence might be stored and who has access to it. In the context of the disclosure process, “documentation” includes “anything in which information of any description is recorded” – this includes tapes, computer records, emails, databases, records of audio communications, text messages, instant messages together with posts on social media. Also included are any handwritten notes of meetings or contemporaneous notes of decision-making; these documents may be key in a claim involving (for example) an investigation meeting or disciplinary hearing.
Both parties will have to prepare a list of relevant documents that they have by number, description and date – these lists are then simultaneously exchanged. Each party then has the opportunity to request copies of documents which they do not have.
The duty of disclosure is ongoing and should any further documents come to light after disclosure, these must also be disclosed by the parties.
Once the disclosure process has taken place, both parties will have an idea about which documents they will want to rely on as part of their case and what they want to be included in the final hearing bundle (which is usually produced by the employer).
The general test to be used when each party is deciding what documents they want to see included in the final hearing bundle is:
If the answer to these questions is no, the document should not be included in the bundle.
In our experience when representing employers, particularly where the employee is unrepresented, the employee will want to include all the documentation they have – even where such documentation is not relevant to the issues to be decided by the tribunal. If the employee refuses to agree the bundle of documents and insists on irrelevant documents being included in the bundle, one solution might be for the employee to be told to prepare a supplementary bundle for the employment tribunal which is separate to the final hearing bundle. It will be the employee’s responsibility to compile this supplementary bundle and to ensure sufficient copies are brought to the final hearing. However, where possible all reasonable efforts should be made to try and agree one bundle of documents for the hearing to avoid criticism later by the employment tribunal.
Further complications can arise whereby the employee has previously made a data subject access request. As the employee will have a range of documents within their possession as a result of the request, the employee may seek to include all documentation disclosed as part of that exercise in the final hearing bundle. This is permissible but again, only to the extent that such documentation is relevant to the issues to be decided. If they are not, such documentation should not be included.
When completing the disclosure exercise, employers need to take care not to include privileged documentation. This includes documentation that was created in anticipation of litigation or where the documentation is subject to legal privilege. This will include communications between employers and their solicitor for example. Employees may also seek to include without prejudice communication in the final hearing bundle in an attempt to show that they were offered money to settle and withdraw their claim by the employer. As above, this should be resisted by employers.
Confidential documents are not immune from disclosure. For example, this could include board minutes whereby the business rationale for a restructure of the company is discussed, which as well as referring to the employee, also refers to other members of staff or confidential financial information. Where such confidential documentation contains content which may be partly relevant to the issues in the case, confidential sections must be blacked out.
Employers should also be alert to the possibility of employees seeking to include covert recordings of meetings, e.g. a recording or transcript of a disciplinary hearing. Such attempts should be objected to and the tribunal should be made aware that such recordings were made without the employer’s consent. For this reason, employers should ensure their staff handbooks expressly prohibits employees or their companions from recording meetings without the employers written consent.
The general rule in relation to the use of covert recordings in employment tribunal proceedings is that the recording of a meeting where all parties were present may be admissible (to the extent that it is relevant and is not already included in the bundle e.g. in a transcript etc.), except where the recording is of private discussions – as this will not be admissible on the grounds of public policy (e.g. where a phone is left on and records the panel deliberating on what disciplinary sanction to apply).
Where a party believes that the other has failed to give full disclosure, it is possible to apply for specific disclosure. First, the other side must be asked for the document, but if they do not comply voluntarily then the employment tribunal can order that the document is disclosed. A party that wishes to seek specific disclosure should make sure that the order is sought in sufficient time before the final hearing as failure to do so could lead to an application to postpone until the document is produced and a costs order against the party that made the application for the document late in the day.
This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.
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