Disclosure in Employment Tribunal Proceedings: Understanding the Limits
The Importance of Disclosure
Disclosure is a fundamental aspect of the employment tribunal process, aiming to promote a fair and just resolution of disputes. It requires parties involved in a case to disclose documents that are relevant and necessary for understanding and assessing the issues at hand. By sharing information, both claimants and respondents can examine the strength of their arguments, identify areas of agreement or disagreement, and gather evidence to support their respective positions.
Failure to comply with disclosure obligations can cause severe damage to the credibility of the party or parties involved and damage their case, sometimes terminally. Courts and tribunals take a dim view of those that don’t comply with the rules around disclosure, so clients should be patient with their lawyers whilst they discharge their duties, as they could find themselves in trouble if it’s not done properly.
Understanding Privileged and Protected Documents
Privileged documents refer to communications that are protected from disclosure under certain legal principles. These documents are considered confidential and are excluded from the general obligation of disclosure. Common examples of privileged documents include lawyer-client communications, legal advice, or documents created in contemplation of litigation.
Protected documents, on the other hand, encompass information that is subject to specific statutory protections. These may include personal data protected by data protection laws, medical records, or sensitive commercial information.
Limitations on Disclosure of Privileged Documents
The disclosure of privileged documents is limited to upholding the principles of legal privilege and maintaining the integrity of confidential communications. Generally, privileged documents cannot be compelled to be disclosed, as they are protected by legal privilege. This ensures that parties can communicate freely and seek confidential legal advice without fear of disclosure in subsequent proceedings.
However, it is essential to note that not all communications with legal advisors automatically enjoy privilege. For example, advice given in a non-legal context or communications for improper purposes may not be protected.
Balancing Disclosure Obligations and Privilege/Protection
Employment tribunals play a crucial role in striking a balance between the disclosure of relevant information and the protection of privileged and protected documents. Parties are obligated to disclose all documents that are relevant to the case, even if they are privileged or protected. However, parties may assert privilege or protection over certain documents and seek the tribunal’s ruling on their non-disclosure to ensure they are withheld for inspection from the other side. Once it has been established that a document is privileged, it confers a right to withhold that document from inspection.
The tribunal will carefully evaluate assertions of privilege or protection, considering the nature of the document, the legal principles involved, and the interests of justice. It is important for parties to provide clear justifications for asserting privilege or protection and demonstrate that the documents fall within the recognised categories.
Disclosure plays a vital role in employment tribunal cases, ensuring transparency and facilitating a fair resolution of disputes. While privileged and protected documents enjoy limitations on their disclosure, parties should be mindful of their obligations and the principles that govern the non-disclosure of such documents. Balancing the need for disclosure with the protection of privileged and protected information is crucial to maintain the integrity of proceedings.
Things to Note
There are several different types of privilege, such as legal advice, litigation, joint, without prejudice, common interest, and privilege against self-incrimination, each covering a different scope of what is/isn’t protected. Also, the term ‘document’ covers a range of recorded information that can relate to email communications, diaries, text or WhatsApp messages, images, or social media posts.
Data Subject Access Requests (DSARs) can be a useful tool in the disclosure process. Under GDPR laws in the UK and EU, any individual has the right to access their personal data to ensure its lawful processing and employers can’t refuse to respond to a DSAR that’s made in contemplation of a tribunal claim – the individual is entitled to all personal data that they’ve requested, even if it will support or justify their case.
It is worth noting that not all communications with lawyers and other advisers will be protected. Privilege can be lost if a party discloses confidential communications to another party without adequate safeguards. Therefore, utmost care must be exercised in handling such documents to preserve their privileged status.
Furthermore, correspondence with other professional advisors, such as accountants or HR consultants, is generally not privileged and is therefore subject to disclosure. Similarly, confidential internal memos prepared by staff or minutes of board and other private meetings are typically not privileged either.
Hence, it is important to exercise caution and understand that just because a document pertains to the dispute under review, it does not automatically enjoy privileged status and exemption from disclosure—it likely does not. Therefore, always exercise prudence and think twice when committing any detail to record, as the assumption of privilege should not be taken lightly.
Lawyers at arch.law can help protect what’s most important. They enjoy the freedom to operate flexible schedules and expand their reach beyond a single geographic location, allowing them to serve clients in different countries. We believe this flexibility is a highly valued element of what sets us apart and a great tool in attracting experienced lawyers to remain or return to practice. Our clients receive tailored legal solutions delivered by highly qualified and engaged professionals able to leverage technology to improve efficiency and collaboration, resulting in faster and more effective legal services.
