Duty to Disclose Documents in Tribunal Proceedings
This guidance discusses an area that is likely to cause concern for employers facing the prospect of litigation from their employees; namely, the duty to disclose documentation in tribunal proceedings and the most common exceptions to the obligation - privileged communications and without prejudice communications.
This note is only intended as a guide and should not be regarded as a complete or authoritative statement of the law. Authoritative interpretations of the law can only be given by the courts. In addition, readers should remember that changes in law and practice may affect the rights described
The duty of disclosure and inspection of documentation
Under the process of disclosure of documentation, parties to litigation provide each other with all documents which are relevant to the proceedings and which are not exempt from disclosure.
What should be disclosed?
The Tribunal Rules stipulate that an Employment Judge may require any person in Great Britain to disclose documents or information to a party to the litigation and to allow such a party to inspect the material.
In practice, the requirement is to disclose all documents that:
(i) the party relies on or which support another party’s case;
(ii) adversely affects his own case or another party’s case;
(iii) are or have been in the party’s control.
However, the ultimate test as to whether a document should be disclosed is whether it is necessary to dispose fairly of the proceedings.
As in other litigation, discovery is limited to documents which are relevant to an issue in the case. It is not ordered so as to enable the claimant to discover whether there is an issue which he can raise.
Disclosure of electronic documents
The duty to disclose applies to all electronic documents including e mails and meta data, e.g. the date and time of creation or modification of a word-processing file or the author and the date & time of sending an e-mail.
It is important as soon as litigation is contemplated that parties preserve electronic documentation which may be relevant to litigation.
Most electronic information is stored or backed up. However, text messages and messages from handheld devices are not usually retained anywhere other than on the device itself. This can cause a problem. The employment tribunal has no power to order that electronic devices are confiscated before data can be removed. If a party is genuinely concerned that electronic data might not be preserved, they should put the opposing party on notice that the data will be required for the proceedings. This should place pressure on the opposing party to ensure that the data is preserved.
When does the duty to provide disclosure arise?
There is no obligation on a party to provide disclosure until the tribunal has made an order to that effect. However, there is a continuing duty to provide disclosure once it has been ordered.
What is the extent of the duty to search for documents?
A party is only under a duty to undertake a reasonable search for relevant documents. Reasonableness depends on:
- · the number of documents involved;
- · the nature and complexity of the proceedings;
- · the ease and expense of retrieval of any particular document; and
- · the significance of any document which is likely to be located during the search.
Responding to excessive requests for documentation
It is not uncommon for claimants to use the disclosure process as a means of forcing a settlement by
requesting huge amounts of information so as to overburden the employer. Faced with such a case, employers will want to remind tribunals that their duty is to ensure that disclosure is proportionate to the issues in dispute. In most cases, this can be met by ordering the employer to disclose some documents which allow the claimant to test his thesis but does not place an excessive burden on the employer.
Dealing with confidential or sensitive information
A common example of confidential or information of a sensitive nature is information taken from employees as part of an investigation which if disclosed could expose the maker of the statement to reprisals.
Another concern is that, while disclosed documents may only be used for the purpose of the proceedings in which they are disclosed, once information is in the public domain as a result of being referred to in the course of a public hearing it can generally be used in any context.
Unfortunately, these concerns do not override the duty to disclose relevant information although it is possible to limit the damage which might flow from disclosure of confidential information in the following ways:
(i) Editing the documents so as to conceal information
Sometimes documents need to be redacted so as to protect information which should be kept out of the public domain rather than to conceal the information from the other parties to the litigation. In those circumstances, it is usually acceptable to provide full disclosure of the documents to the other party and agree that a redacted form is included in the tribunal bundle.
However, the situation is more complicated where the aim is to redact documents to conceal information from the other party. One of the leading cases involved a claimant who wanted disclosure of statements made by his colleagues which contained information alleging he had used drugs at company events. The statements had been obtained from witnesses following a promise from the employer that the statements would remain confidential. The EAT ruled that the tribunal should not have ordered the employer disclose to the statements in their totality. Instead the tribunal should have ordered disclosure of the witness statements in an anonymous or redacted form to conceal the identity of the witnesses and maintain the employer’s promise of confidentiality to those making the statements.
If even adopting this approach means that it is not possible to conceal the identity of the makers’ statements may have to be excluded in their entirety and the question of the fairness of the dismissal will have to be judged in due course by the tribunal on that basis.
(ii) Restricting use of disclosed documents
A tribunal may also make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.
Admissibilty of covert recordings of meetings
It is becoming quite common for employees to secretly record meetings and to try to rely on the transcripts in the tribunal proceedings. As a general rule, if the meeting was always intended by the parties to be recorded (albeit in a written form by a note-taker) covert recordings are admissible. However, private deliberations, for example during disciplinary proceedings are not admissible on public policy grounds.
Legal professional privilege
The doctrine of privilege allows a party to seek and receive legal advice from lawyers as well as prepare for litigation without fear that those communications will be produced in any legal proceedings.
There are two forms of legal professional privilege: legal advice privilege and litigation privilege:
(i) Legal advice privilege
Documentation which is privileged under legal advice privilege need not be disclosed during litigation. Legal advice privilege is limited to communications between lawyer and client for the purpose of giving or receiving legal advice even at a stage where litigation is not in contemplation.
Generally speaking, the reference to lawyer means a qualified lawyer provided that they are acting in their legal capacity. HR consultants, even if they dispense legal advice, are not covered and in one case communications between the employer and a firm of consultants containing confidential legal advice concerning the disciplining and dismissal of the employee was not protected against discovery on the ground of legal professional privilege.
Similarly, communications with a trade union representative are not privileged.
Privilege only applies to communications to solicitors outlining a legal problem and their reply. Legal advice is not simply telling the client what the law is, and also includes advice as to what the client should prudently and sensibly do. However, purely “commercial” advice will not be privileged.
(ii) Litigation privilege
Litigation privilege entitles a party to withhold disclosure of:
- · confidential communications between a party and his lawyer, or between the party or his lawyer and a third party (eg, a medical expert);
- · where the dominant purpose of the communications is actual or contemplated litigation; and
- · litigation is contemplated or has commenced.
This doctrine is much wider than legal advice privilege but only comes into play where litigation is contemplated or commenced. It is the basis for claiming privilege statements made by witnesess and communications with occupational health advisers.
Waiving legal professional privilege
As the privilege belongs to the client and not to the lawyer, it can only be waived by the client and a lawyer is under a duty to assert it until it is waived.
Without prejudice communications
The ‘without prejudice’ rule is that negotiations made for the purpose of a genuine attempt to compromise a dispute between the parties cannot be admitted as evidence in legal proceedings.
The rule is very important when considering “off the record” discussions with employees concerning the possible termination of their employment. In the leading case, the claimant raised a grievance alleging sex discrimination. She was invited to attend a meeting to discuss her position and at the beginning of the meeting was told that the employer wanted a “without prejudice” discussion. During this discussion it was suggested that her contract could be terminated on generous
financial terms. She brought employment proceedings alleging that she had been victimised and subjected to sex discrimination in that the employer sought to terminate her contract after she lodged her grievance. The employer objected to the Claimant referring to the without prejudice meeting. However, the EAT held that the discussions during the meeting were not covered by the Without Prejudice rule as the lodging of a grievance did not necessarily mean that there was a dispute and none existed at the relevant time.
From the employers’ perspective, this case is a worrying development as it seems to curtail their ability to have frank and open discussions with employees at an early stage during a grievance.
Business Secretary Vince Cable says he wants to create “protected conversations” that would “allow employers to raise issues such as poor performance or retirement plans in an open way, free from the worry it will be used as evidence in a subsequent tribunal claim”. The government announced that it intends to consult on the introduction of ‘protected conversations’.
In the meantime, employers should have little fear that they are limited in their ability to have productive without prejudice discussions once a dispute arises with an employee.
Warning – this guidance is for information only and does not claim to be comprehensive or to provide legal or other advice. You should take legal advice before taking or refraining to take any action. No liability is accepted for loss that may arise from placing reliance on this guidance.
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