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Disclosure of documents

There are a number of possible triggers for a request for specific disclosure. When you first see the response to the claim, it may well mention documents, or events that must have given rise to documents (e.g. meetings that must have been minuted). This will be too soon to fire of a request for specific disclosure – because in due course the tribunal will give directions for both sides to disclose to each other all the relevant documents they’ve got, and for the moment you might as well wait to see what they disclose voluntarily.

At that point, though, you will want to take a careful and critical look at what they have disclosed. Go through the documents in detail to check that they are complete. Highlight any reference in one document to any other document that looks relevant, and then check that it is present. Highlight any reference to an event that sounds as if it is likely to have given rise to documents, too – e.g. if a meeting is mentioned, are there any minutes of it? If you are an adviser, get the claimant to do the same: two heads are better than one, and your client will have inside knowledge of the workplace that will sometimes make it easier for her to spot missing documents. Then write a letter asking for any specific documents you think have been left out, and apply to the tribunal for an order in due course if you need to.

At this point it can be tempting to think that you have ‘done’ disclosure, and need not think about it again. That would be a mistake: you need to stay aware of the possibility of requesting further disclosure right up to the hearing. Sometimes it is even necessary to apply for an order for further documents to be disclosed during the course of the hearing, if it becomes clear in cross-examination that something has been withheld that should not have been.

One particular occasion on which you should always revert to the question of disclosure is exchange of witness statements. Read the respondent’s statements carefully, and repeat the exercise that you did before: highlight every mention of a document, and check that you have it; and make a note every time the statement mentions any event that is likely to have created a ‘paper trail,’ and make sure that has been disclosed too.

Be prepared to explain, when you write to the tribunal for an order for specific disclosure, why the additional documents were not requested previously. If you have only realised that they exist (or probably exist) because of what is in the witness statement, say so.

4 comments

  1. Victor

    Can we refer to documents in a statement of evidence and produce them as exhibits to the statement. The exhibits would be disclosed with the statement of evidence?
    Thank you.

    • Naomi

      You can, but there’s no point – it’s much more convenient for everyone if you just make up a single paginated bundle of all the documents either party wants to refer to, and refer in the statements to page numbers in the bundle. (We’ve posted quite a lot about bundles and how to put them together – go to the index page and click on the ‘bundles’ link if you want to know more.)

  2. Ed

    Dear Naomi and Michael

    (1) The Employment Tribunal ordered the Respondent to include in the bundle of documents “the Claimant’s relevant documents.”
    (2) I have requested the Respondent to include all the correspondence between me and the HR department.
    (3) The Respondent refused to include all the aforementioned correspondence, stating that is entitled to select which documents are relevant and which aren’t.
    (4) The Tribunal ignored my submissions that this is unfair and chose to decide the case on the subset of documents chosen by the Respondent.

    Can this judgement based on a subset of documents chosen by the Respondent stand?

    • Ed

      Just to clarify, when I refer to “a subset of documents” I mean a subset of the correspondence between me and the HR department.

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