Disclosure

What is disclosure?

Disclosure is a standard procedural step in most civil cases in England and Wales, whether the case is taking place in a court or an employment tribunal.

It is usually a standard employment tribunal direction that all documents relevant to the issues in the claim that are in the party’s possession, custody or control be disclosed to the other party or parties. This will include the documents that the party relies on, but it will also include the documents that adversely affect that party’s case (i.e. that document may assist another party’s case).

It is important to note that the duty of disclosure continues throughout the case. This means that if additional documents are found, or come to light, after the main disclosure exercise has taken place, the parties are still under an obligation to disclose these.

Please note that separate disclosure rules apply in Scotland, although the regime is very similar to that operating in England and Wales.

What documents should not be disclosed?

Some documents may be privileged; this means they do not have to be disclosed to the other party, unless the party holding the privileged documents wishes to waive that privilege. A document is not privileged merely because it contains confidential information; there are only specific documents that may be considered privileged:

• Without prejudice correspondence; communications between the parties which contain a genuine attempt to settle the dispute, will not have to be disclosed.
• Legal advice privilege: communications between a party and their legal representative for the purpose of giving legal advice do not have to be disclosed.

Where one part of a document is privileged, it may be possible to redact this part of the document, so that the whole document can still be disclosed.

Good disclosure practice

Documentary evidence is key in most employment tribunal cases to establishing the facts of the dispute. It is vital, therefore, that companies keep up-to-date records and evidence of important conversations or events. Below are some good practice tips that will assist when it comes to disclosure:

• Ensure all decisions are communicated in writing, whether that be to an employee or manager. Records of decisions are vital.
• Ensure all important meetings have a competent note taker present. This is especially important during a disciplinary or grievance investigation. Having accurate, detailed notes of meetings helps to avoid any misunderstanding or ambiguity at a later stage.
• Ensure that you have a good storage system, whether that be physical or virtual, for all documents that relate to a particular dispute or matter.
• If something feels important, make a note of it, write it down, or otherwise make you have laid a ‘paper trail’ to refer back to later.