All will be revealed – disclosure in the Employment Tribunal
I’ve written recently about the importance of witness statements in the Employment Tribunal and disclosure is no less important. The documents relevant to the case are disclosed (shown to one another) by both parties and form the basis of the final agreed bundle which is placed in front of the Employment Judge and panel (if a discrimination claim). The witness statement cross references to the bundle page numbers to the two are inextricably linked.
Both parties have a duty of disclosure which means the duty to show the other side all documents relevant to the case even if they are detrimental to the case and/or defence of that case. So, if you have documents that undermine your position then these have to be disclosed as well, as long as they are relevant. One example might be where you are claiming that you were unfairly dismissed for conduct reasons and one of the allegations is your email tone and style. If there are emails that you have in your possession that support this assertion you are duty bound to disclose them.
We often find that the merits of a case, that is its chances of winning are impacted by the documents disclosed. You will often find that the other side has documents you might have been unaware of and not expecting to see. If they share something you have not shared that you have, this will land you in hot water. On the flip side, you may have documents that undermine the other side’s defence of your claims. It is swings and roundabouts. What also becomes apparent during disclosure is the lack of disclosure with the other side (usually the employer in our cases) fails to disclose all relevant documents or discloses them on a piecemeal or redacted basis. This can cause issues as you are left trying to piece things together.
If this does happen you are entitled to write to the Tribunal and make an application for ‘specific disclosure’ to secure disclosure of documents that you believe may be missing. Exercise caution here. This is not a ‘fishing exercise’ and any application has to be clear as to the relevance of the documents requested and why they may be relevant. Many applications of this type have been refused on the basis that it is too wide or unspecific (the clue being in the name of the application itself).
The key to good disclosure is being organised. I have, in my time, received a client’s disclosure documents in a plastic bag from a well-known retailer where I have been left to categorise them and try and find some semblance of order. This is both expensive and time-consuming. When we as professionals undertake the disclosure exercise we draft a chronological list of the relevant documents. These are then exchanged with the other side (who provides their own list) and the two are amalgamated to form an agreed bundle index. The bundle follows from there. Please be aware that the disclosure duty is on-going throughout the litigation process and so documents that come to light before the hearing must also be disclosed. I have been in situations where arguments over documents and disclosure carry on right until the morning of the hearing.
In a nutshell, document management and organisation is key. A case can turn on disclosure so transparency is paramount. The bundle must be well presented and clear. A poorly organised bundle is going to infuriate the Employment Tribunal and start the hearing on the wrong footing. So will any attempts to hide relevant evidence.