Discovery and Disclosure of Documents
Company documents can sometimes be called into public scrutiny.
This is most likely to occur when employment law problems arise, or
for example in Health and Safety matters where outside agencies
come on board (e.g. Health and Safety Agency).
The words ‘discovery of document’ (sometimes called ‘disclosure’)
occur when one party says to another “you (may) have documents
relevant to the case – let me see them”. The processes that flow
from that request/demand/Order are known as discovery. The
word ‘inspection’ means just what it says, when the opposing party
exercises a right to see and inspect the original documentation.
Below is set out some guidance on:
1. The definition of a document
2. What documents are discoverable
3. The length of time companies should preserve documents
4. House-keeping tips for your documents
5. Examples of documents relevant to particular cases
1.
The definition of a Document
The word ‘document’ is a misnomer in that documents will not only
include written and typed documents but anything on which
evidence is recorded. This could include tape recordings,
photographs, videotapes, emails, computer disks etc.
There is, however, no duty to create a document for the purposes
of discovery. It is important that USEL ensures that the original
documents (as opposed to copies) are preserved, as otherwise this
may subsequently lead to an attack on the authenticity of the
document.
2.
What Documents are Discoverable?
The basic premise is that there is no general duty to disclose
documents in an Employment Tribunal, unless requested to do so
by the other party. However, if discovery is requested then there is
a duty on the parry providing discovery not to give a misleading
impression by the documents disclosed. That is, they must disclose
all documents relevant to the issues and necessary for fairly
disposing of the case. So if USEL has a document that adversely
affects their case and/or supports the opposition’s case then the
document must be disclosed. Technically speaking, disclosure
means providing the other side with a list of documents and
inspection is providing sight of those documents. Commonly,
however, documents are simply copied and sent to the other party.
The documents that are “relevant to the issues and necessary for
fairly disposing of the case” cover a wider ambit in discrimination
cases than in unfair dismissal cases. For example, in a case of
unfair dismissal arising from a redundancy, USEL could object to
discovery of another employee’s score sheet in a selection process,
whereas in discrimination the score sheets may be discoverable
unless the request is oppressive.
Furthermore there is a continuing duty on USEL to disclose
documents. If a document therefore materialises late in the
proceeding it must still be disclosed. Legal advice should be sought
with issues such as privilege, public interest, or confidentiality.
3.
How long should the documents be preserved?
It is difficult to provide any fail-safe time limit for the preservation
of documents. The Equality Commission Guidance suggests that a
period of three years is appropriate for maintaining recruitment
files. However, employees can bring a breach of contract claim six
years after the breach has occurred if those proceedings are in a
County or High Court as opposed to a Tribunal. USEL will also have
to take into account that the organisation may be required to keep
documents longer in order to comply with other statutory
legislation.
4.
House-keeping tips
The following are some recommendations for recommendations.
The list is not exhaustive.
•
All original notes should be consolidated into one folder after
each exercise (for example recruitment, disciplinary,
redundancy and /or grievance investigation). This folder
should be inserted or attached to the individuals personnel
file. It is particularly important to ensure that individual
personnel (where two or more may have been involved) do
not independently store their notes, which causes difficulty in
both consolidating the notes at a later stage and ensures they
are preserved.
•
Any personnel from supervisor to Director should note that
when making handwritten notes during any exercise they
must refrain from:
1.
Doodling (may demonstrate inattention to the
process)
2.
Unjustified handwritten comments
3.
Marking applications in a specific way, for example
placing dots against all names of one religious
affiliation/gender etc.
In the last few years’ organisations have actually lost
cases as a direct result of breaching the above
exhortations.
•
•
Unless unduly burdensome, typed copies should be made
which replicate exactly the handwritten notes. The typed
copy is not an opportunity for extra comments or
amendments to be made to the handwritten notes unless the
handwritten notes represent a skeleton and the typed copy is
made contemporaneously, meaning, in effect, the same day.
The handwritten not should nonetheless be retained.
Any documents relevant to litigation should be placed in a
folder and clearly marked “litigation pending- do not destroy”
and stored safely.
•
Within the folder documents should be stored in an orderly
fashion, preferably chronologically, from which follows the
need for every document to be dated, with the author
identified.
•
Again, unless burdensome, an index to the documents should
be provided. Frequently 2 or 3 years down the line, it can be
difficult to identify some documents.
•
If providing photocopies USEL must ensure:
1.
2.
3.
4.
Both sides of a double sides copy are made
The full page is copied
The copy is legible
Avoid stapling documents
5.
Examples of Documents Relevant to Cases
Unfair Dismissal
Discrimination
E.g.: Non- appointment
Grievance Investigation
Disability Discrimination
Disciplinary hearing file
Appeal hearing file
Letters to applicant re:
employment
Employment Contract documents
Disciplinary Policy/Procedure
Any other documents of
evidence, such as statements
etc.
Job Advertisement
Job Description
Personnel Specification
Recruitment File
Short-listing criteria
Applications
Score Sheets
Selection matrices
Interview file including all
interview notes and forms
Job offer
Minutes of meetings
Investigation (statements etc)
Letters to Applicant re outcomes
of grievance
Appeal hearing file
Job description
Job duties
Sickness certificates
Medical reports
Risk assessments
List of adjustments made
Any documents from the
disabled employee
Summary
The importance of discovery/inspection and maintaining full and
accurate records cannot be over emphasised. Unfortunately, unless
evidenced in a document, the Tribunal often take the view that what
an organisation alleges happened did not in fact take place. In a
discrimination case, the lack of documents can also lead the
Tribunal drawing adverse inferences that could lead to a finding of
discrimination. Documents are also important for assisting
organisation witnesses recollect event that have occurred. As there
are real delays in reaching Tribunal, documents are vital to
identifying and proving events that took place, or did not take
place. Sound and ordered documentation can save hours, days or
weeks of work for Company witnesses and officials once the
Tribunal processes commence.
(Adapted from Michelle McGinley – Employment Lawyer
giving an update of employment law to the Engineering
Employers Federation September 2003)