The importance of being able to show contemporaneous documentation that either supports your case or undermines the other side's case in a Tribunal cannot be overstated.
One of the early steps that the parties must carry out in a Tribunal case is "Discovery". The process of discovery involves producing a list of all documents that are in the parties possession or control that are relevant to the issues that the Tribunal will need to consider to determine the case.
Documents are not limited to paper, but can include anything on which information can be stored or recorded. Consequently documents created on computer must be included, as well as video or tape recordings, emails, text messages, telephone records, photographs and posts on social networking websites such as Facebook and Twitter.
The obligation of discovery is usually to disclose all relevant documents to the claim, whether or not they are helpful to your case.
The fact that a document is marked "Confidential" or contains highly sensitive information may not be sufficient to exclude them from the discovery process. Correspondence between a party and its legal advisor attract "Privilege" and do not need to be discovered. You should always take legal advice if you are unsure as to whether a document needs to be discovered or not.
Whilst the obligation to discover relevant documentation continues throughout the life of the case, late discovery of documentation may not be permitted by the Tribunal or may have cost consequences for the late disclosing party. It is therefore extremely important to take the discovery process seriously.
If an employer is faced with defending an Employment Tribunal claim, the following checklist may assist in considering the discovery it must disclose to the other side. Each case is fact and issue specific, and legal advice should be sought where appropriate.
Personnel file
Job descriptions applicable to the employee's role(s)
Documents relating to the employee's application for employment, interview notes, job offer and acceptance letter
Equal opportunities monitoring form
Any pre-employment checks carried out
Any written contract/ terms and conditions issued
Any variations to the terms of employment
Details of any salary increases
Appraisals or reviews
Details of any unexpired disciplinary warnings
Details of any grievances raised by or about the employee
Sickness records, medical reports and correspondence relating to any sick leave taken
Training records M-21819103-1 2
Annual leave, parental or dependant's leave
Details of any monies loaned to the employee or training courses funded, together with any applicable repayment terms
In unfair dismissal cases, the Step 1 letter and any letter of appeal
Notes of any meetings with the employee and notes of any considerations given during, between and after those meetings.
Invitation letters to meetings and outcome letters following meetings.
Notes of any redundancy consultation meetings
Staff Handbook, Policies and/ or Manuals
Contract and any documents relevant to the terms and conditions of employment
Policies and procedures, including:
Disciplinary and grievance policy
Capability procedure
Harassment and bullying policy
Equal opportunities policy
Electronic communication systems policy
Social media policy
Sickness and absence policy
Maternity, paternity and adoption policies
Parental leave policy
Flexible working policy
Whistleblowing policy
Bonus scheme
Internal Communications
Identify any staff members who were engaged in the issues before the Tribunal. This may include HR officers, managers and supervisors who may have sent emails, memos or reports about the employee or written diary notes or notes of meetings or conversations with or about the employee. Ask them to provide the originals of any such documentation. They should be asked to search their paper records and electronically stored documentation (including current and archived emails).
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DisclaimerThe information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.This article is correct at 06/08/2015
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