Employers quite often refuse to disclose documents that mention or relate to other individuals, saying they have to keep those documents confidential because of the Data Protection Act.
They are wrong. Section 35 of the Data Protection Act says this:
(1) Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.
(2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary—
(a) for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or
(b) for the purpose of obtaining legal advice,
or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.
In other words – in this context – there is nothing in the DPA to prevent an employer from disclosing documents if disclosure is necessary in employment tribunal proceedings. At most, if the relevance of your request isn’t obvious, they might say that they are not sure that section 35 applies because they are not sure disclosure is ‘necessary’ for the stated purposes – so if you want it you’ll have to get the tribunal to order it. But that doesn’t mean the DPA will be of the slightest help to them in opposing your application: you’ll just be arguing about whether disclosure is necessary, which you’d always have to establish before you got an order for disclosure.
Lots of employment tribunal cases are won or lost depending on how thorough a job the claimant has done of shaking all the relevant documents out of the respondent.
A particular point to keep in mind is just how much communication is now done by email. That can be easy to overlook if your own job doesn’t involve sitting at a computer all day. But for those who do (and that means almost all office-workers), many things that a few years ago would have been said on the phone or face-to-face are now put in an email.
The difference between picking up the phone or putting your head round the door and writing an email, of course, is that the email leaves a permanent record. So if your managers have been discussing by email how to go about sacking you (for example), that is material that you should be able to get hold of when it comes to disclosure.
There is now a useful discussion of privilege, including waiver (see previous post), by the President of the EAT in Howes v Hinckley Bosworth BC
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.
If you want the other side to do something (e.g. disclose some documents to you), always see if they will do it voluntarily before you apply for a tribunal order requiring them to do it. The reason for this is that it gives you two bites at the cherry. Sometimes respondents will disclose documents on request that the tribunal wouldn’t order them to disclose – if you go straight to the tribunal to ask for an order, you miss the opportunity to benefit from this. One thing is certain: once the tribunal has refused you an order, they won’t say ‘Oh well, we’re feeling generous – have it anyway.’
Don’t skip the first stage just because time is short. If there isn’t time to give them a reasonable period to comply before you apply for an order, ask them to let you know by return whether they are willing to comply so that you can make your application promptly if they are not. If you don’t get an answer, you can always ring them up and ask them what they plan to do. If they say they haven’t decided yet, then you may have to say something to the effect ‘In that case I’ll have to ask the tribunal for an order now because time is short, but of course if you comply with my request meanwhile I will withdraw the application.’
This is a particular instance of the more general rule that – whatever you’re after – it’s better try charm first, and resort to aggression or compulsion, if appropriate, only after charm has failed. You can’t credibly backtrack from aggression to charm, but you can always escalate from charm to aggression if you have to.