Discovery in Employment Tribunals – How do I handle it?
As part of our ‘How do I handle it’ series on employment law and difficult workplace scenarios, Rachel Richardson, Director at Tughans, considers the following problem and offers some practical advice.
I am an HR manager and our company has received a Notice for Discovery as part of industrial tribunal proceedings from an ex-employee. I have gathered all information relating to the claim, which also includes some of my own personal notes, as well as emails between another manager and me, regarding the employee concerned. These documents have never been seen by anyone else and I believe that they might have a negative impact on our defence. Do I have to disclose these to the Claimant?
On the face of it, I think it is likely that these documents will be discoverable. Discovery obligations upon the parties in tribunal proceedings are very wide. The obligation will cover all documents relevant to the issue in the claim, which are in a party’s possession, custody or control.
For the purposes of discovery, a “document” is not limited just to paper records, such as an employee’s personnel file. It can in fact extend to electronic communications, such as emails, text messages and even postings on social media, such as face-book.
Therefore as you are now in receipt of the Discovery Notice it will be important that you identify and keep safe any relevant documents, prior to their release to the Claimant. Importantly, a party in proceedings cannot “pick and choose” what documents it discloses. If the document is relevant to the issue in the case, then it must be disclosed, irrespective of whether it helps or hinders that party’s position in the proceedings.
If a party fails to provide discovery to the other side, then they can apply to the Employment Tribunal Judge for an Order for discovery, compelling them to discover relevant documents. If a party wishes to obtain a specific document from the other side, they can request specific discovery of that document. Often, if there are issues with discovery in the case, then they will be dealt with at a Case Management Discussion (“CMD”). There may sometimes be issues with medical reports and records, where a party does not wish those to be disclosed, those can be dealt with at a CMD and the Employment Tribunal Judge may order that only certain excerpts have to be disclosed (which are relevant to the issues in the case) and that others should be redacted.
The only documents which are not discoverable are those that are “legally privileged”, for example, communications between a party and their legal representative for the purpose of obtaining legal advice.
Remember, that any information obtained throughout the course of an employee’s employment may very well become discoverable, should any claim ever arise. This includes any communications, such as emails between managers, which make reference to an employee, whether they were intended to include private observations or not, as well as notes which may have been made about an employee during, for example, an interview, grievance or disciplinary process. If, as part of any discovery exercise, documents appear, which for example evidence the employer’s views on an employee, which could be on protected grounds, then that could result in additional claims being added in to those existing proceedings.
Rachel works exclusively in Employment Law and should anyone have any queries she may be contacted by Telephone: 028 9055 3300 or Email: Rachel.Richardson@tughans.com
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.