Disclosure – What Is It and How Does It Work in Employment Cases?
In simple terms, the duty of disclosure means the obligation of both the claimant and the respondent to allow each side to see documents in the possession or control of the other side in a claim. Importantly, this duty will apply regardless of whether any of these documents help or hinder a claim. There are exceptions to this duty which will be discussed later.
The main purpose of disclosure and inspection of documents is to give both sides the chance to evaluate the strength of their opponent’s case in advance of the trial. Additionally, it is done to promote settlements and save costs as well as to assist in the preparation of witness evidence. The idea is to avoid either party to be taken by surprise at the trial, and the court has all the relevant information to enable a fair trial.
How Does The Process of Disclosure Start?
To begin with, the Employment Tribunal judge will ask both parties to make a list of documents they consider evidence, and then both parties will exchange lists. From here on, each side can request copies of documents from the list which will then be used by all those in attendance at the hearing.
Standard disclosure deals with documents each party, involved in a case, must share with the other party. This includes documents that support their argument, documents that could hurt their or another party’s case, and documents that the court says they must share (CPR 31.6).
Some examples of potential documents for disclosure that parties may rely upon in an employment tribunal claim are:
- Contract of employment
- Employment policies (i.e. grievance procedures, disciplinary procedures, health and safety guidance etc)
- Equal opportunities policy
- Pay slips
- Email correspondence
- Notes from relevant meetings (i.e. disciplinary and/or grievance meetings)
- Accident book
- Probation report/s
- Performance appraisal/s
- Social media discussions
Specific disclosure enables either party to apply for an order that goes beyond standard disclosure. CPR Rule 31.12 allows the court to make an order for specific disclosure or inspections that requires the other party to:
- disclose documents or classes of documents specified in the order;
- carry out a search to the extent stated in the order; and
- disclose any documents located in the search.
Exceptions in Disclosure: Privileged Documents
There are two kinds of privileged documents:
When a client communicates with their lawyer or their lawyer talks to another lawyer on their behalf, those conversations are private aka “privileged” and can’t be seen by the other party involved in the case. This is to protect the confidentiality of the advice given by the lawyer to their client. This can include any information that the client shares with their lawyer about their case.
This refers to communications that pass between a solicitor and a third party that might not have to be shown to the other side in a case. These are only considered privileged if the communication occurred after the case started and was meant to help with the case, like giving advice or finding evidence.
Certain documents may come under this heading, such as expert reports obtained by a solicitor, that will be used in advising a client about existing or contemplated litigation. Other documents could be witness statements obtained by a solicitor for the purpose of existing or contemplated litigation.
Also included under this heading could be communications between a client and a third party. This is provided if the primary purpose they were created was to obtain legal advice related to existing or contemplated litigation or to conduct or help in the conduct of this kind of litigation. Legal advice provided by non-legally qualified staff may not be covered by legal advice privilege.
Commonly Asked Questions
Can “privilege” be waived?
A client can waive their right to privilege but not the solicitor. It is important to note that once any copy of a privileged document is served on the other side then the privilege is waived, i.e., the right for documents to remain confidential and protected by privilege.
What Happens to Confidential Documents?
Where one party is asking for documents to be disclosed that the other side is refusing to disclose due to confidentiality, the judge will likely want to inspect these documents to decide if they should be disclosed. It may be possible to redact parts of any document in order that it can be disclosed and inspected.
What are Without Prejudice Documents?
“Without prejudice” refers to communications that a party cannot use as evidence against the other party during a dispute. The general approach is that ‘without prejudice’ communications are not disclosable unless there is what is described as ‘unambiguous impropriety’.
An employer can now make an offer to an employee which cannot be used in tribunal proceedings involving unfair dismissal, classified as a ‘protected conversation’. This means that where a valid settlement agreement is agreed upon between the two parties, the employee will be unable to bring a claim of this kind to an employment tribunal. This is not the case in discrimination claims as “without prejudice” communications between the parties can be disclosed.
This guidance has been produced to give an overview of disclosure which is a complex and time-consuming process best left to experienced solicitors to handle on your behalf.
Redmans have many years of experience in dealing with the management of cases in litigation and can guide you through this tricky process.