As part of the preparation for your employment tribunal claim you will need to comply with the ‘disclosure’ and ‘inspection’ requirements of the tribunal. Below is a summary of what is required during this process.

What is disclosure?

Disclosure is the process by which each party to the litigation discloses to the other parties any documents relevant to the issues in the case. This is normally done by the parties exchanging lists of documents they consider to be relevant. If there are few relevant documents, the employment tribunal may simply order that each party provides copies of the relevant documents without first compiling a list.

What is inspection?

Following disclosure, inspection takes place; this usually involves one party requesting copies of documents from the other party’s list.

Under CPR 31.3 a party to whom a document has been disclosed has a right to inspect that document unless:

• The document is no longer in the “control” of the party who disclosed it.

• The party disclosing the document has a right or a duty to withhold inspection of it (this would be if the document was sent on a without prejudice basis, is subject to litigation privilege or is subject to legal advice privilege.

• A party considers that it would be disproportionate to the issues in the case to permit inspection of that document.

What to disclose?

A party must disclose all documents:

• which the party relies on to support its case;

• which support another party’s case;

• which adversely affect the party’s own case; or

• which adversely affect another party’s case.

If there is any dispute about whether a document should be disclosed, the tribunal will decide, based on whether the document is necessary in order to deal with the tribunal proceedings fairly. 

What is a document?

‘Documents’ in this context extends beyond simple paper documents to include any information which is recorded or stored either on paper, or in an electronic format. A document may include:

• emails, word processed documents, information in databases;

• documents stored on servers and back-up systems and electronic documents that have been ‘deleted’;

• additional information stored and associated with electronic documents eg information as to the date and time of creation or modification of a word processing file, or the author and the date and time of sending an email;

• photographs;

• voice or CCTV recordings;

• medical records; or

• information marked ‘confidential’.

In order to comply properly with the duty to disclose, you must conduct a reasonable search for documents that are under your control (ie documents which you have a right to obtain access to, or to inspect or take copies of) or that are in your possession. The extent of what is considered a ‘reasonable’ search will depend on a number of factors such as the nature and complexity of the case and the cost of searching for the documents and may require an application to the tribunal to resolve.

Specific Documents

If there are any specific documents that you consider to be relevant to the case that other parties have not disclosed, or if there are any documents the other parties seek from you, the party seeking the documents can apply to the tribunal for an order for disclosure of those documents. Such an application must set out why the documents are relevant. The tribunal has a discretion as to whether or not to order the disclosure of documents. If you are having difficulty obtaining a document, or there is a document that you wish to obtain from the respondent which has not been produced, it is important that you seek advise on this as soon as possible. The disclosure process cannot be used by parties in order to ‘fish’ for further information upon which they may seek to bring or defend a claim. The process is limited to disclosure of documents relevant to the issues in the case.

Disclosure from non party

The finer details of disclosure

The duty to disclose is an on-going duty: therefore, if any documents come to your attention at any time, even after the initial disclosure process has been completed, you are required to disclose them in the proceedings. If you discover further relevant documents as the proceedings progress, you should seek advice from your lawyer.

Duty to preserve documents: you are under an ongoing duty to preserve any relevant documents and other records of information such as photographs, audio or video recordings and computer files as described more fully above.

Document authenticity: documents are usually exchanged as copies. If you consider the authenticity of a document requires checking, an original document can be requested. 

Electronic documents: it is very important that any electronic documents are preserved for the purposes of disclosure as soon as possible. If, for example, company-issued smartphones or other devices are routinely wiped upon an employee leaving, relevant and disclosable emails and/or text messages may be deleted (although copies may be stored on a back-up server). Similarly, if an employee’s emails and files are deleted upon that employee’s departure, key documents may be lost. It is therefore very important to ensure that such documents are preserved and, ideally, to have systems in place which prevent automatic deletion in these circumstances.

Confidential Documents

Documents that are not admissible as evidence

In addition to documents which do not need to be disclosed between the parties, there are also some documents that are in the possession of both parties, but which are not ‘admissible’ as evidence before the tribunal. These documents will therefore not be added to the bundle of documents used at the hearing.