When preparing for an employment tribunal case, one of the most tedious tasks can be the process of disclosing documents and pulling together the hearing bundle. At first, this may seem like an administrative task and just a ‘box to tick’ exercise. However, there is more to document disclosure than meets the eye. Tribunals can be very demanding when it comes to documentation, and a well-prepared hearing bundle can have an impact on the outcome of a case.
Our experience has taught us that this is how employers can ‘do disclosure’ well:
1. Ensure you get the documents to your employment law advisor early in the process
The first and most important job for HR teams when it comes to document disclosure is to promptly get everything that relates to a case to the employment law advisor. It is your advisor’s role to filter what is relevant to the case, but they can’t consider documents they haven’t seen. Doing this as early as possible in the process will ensure a thorough and accurate response and give a head start on the disclosure.
2. Engage the relevant managers and any other colleagues involved in the case
HR can’t do this all on their own! You may well have asked managers to put all documentation onto your HR system, but the reality is, that the HR system will not be the full picture.
Individuals will have documents that you do not even know exist but do not want to miss. Make sure that those closest to the case know that there is a claim and understand the documents that may be relevant. These may include hand written notes, email threads and briefing records. This approach goes a long way towards avoiding any ‘gaps’ in the case.
3. Think outside the box
Once you have collated the standard documents such as letters and emails, step back and consider whether there is anything missing. Do your Company use an instant messenger service? Are those messages retained? Could they contain anything relevant? What about monitoring information such as email or phone records, could they add anything to the case?
Sometimes the information or documents that nobody paid attention to at the time can hold vital information for a Tribunal claim. That final check is worthwhile.
4. Consider both sides of the case
The process of preparing the documentation for a case can present a challenge where different parties have different views on what documents are relevant. Ultimately, the documents need to represent both parties’ positions. You cannot just cherry pick the documents that help your case; the duty of disclosure requires each party to disclose the good and the bad. What you can do though is make sure that you don’t overlook anything that supports the Company’s case by giving careful thought to the points above.
What to do with all of these documents?
The final stage in the disclosure process involves both parties’ documents being combined into a joint bundle. However, disclosure is an ongoing process, so if any additional documents come to light down the line, don’t panic but make your advisor aware of them immediately.
So, as you can see, disclosing the right documents for your employment tribunal claim is not just a straightforward administrative task. An approach which follows these guidelines will enable an employer to build the best possible picture of the way that the issue was handled, allow for a smooth tribunal hearing and, importantly, a happy Judge. Check out our other blogs for advice on dealing with the other stages of the employment tribunal process.