An order for disclosure, either specific or standard, in an employment tribunal may only extend to documents that can be disclosed under Rule 31 of the Civil Procedure Rules. The employment tribunal cannot order disclosure under a lower threshold, for example, to disclose documents that are ‘potentially relevant.
A recent Employment Appeal Tribunal case, Santander v Bharaj, has clarified the rules applying to applications for specific disclosure of documents in employment tribunal cases.
Standard disclosure relates to documents on which a party is relying, which adversely affect either party’s case, which support another party’s case or which should be disclosed by practice directions.
Those involved in a case have a duty to make a reasonable search for relevant documents. If provision of the document would be unreasonably expensive, onerous or the document is not likely to be significant, the party should notify the other side that a search has not been made for these reasons.
If a relevant document comes to light at any stage during the case, it should be disclosed.
If a party fails to disclose a document, the tribunal may be able to order specific disclosure.
Employment tribunal powers to order specific disclosure of documents or information
The case of Santander v Bharaj UKEAT/0075/20/LA(V) restated the rules which apply to specific disclosure in employment tribunal cases.
An employment tribunal has the power to order the disclosure of documents or information to someone involved in a tribunal case. This power is derived from the Civil Procedure Rules (CPR).
The test that the tribunal must apply is whether disclosure is necessary to fairly deal with the proceedings. In deciding whether disclosure is necessary, the tribunal will look at:
- Whether disclosure will mean that the case can be dealt with justly;
- The financial cost of disclosure.
Applying for specific disclosure
The burden is on the applicant to establish its case, meaning an application for specific disclosure should normally be supported by evidence. The respondent may also wish to provide evidence in reply to the application.
Decisions on whether a document should be disclosed or not can be made without the tribunal seeing the documents for itself. The decision will often be made by reference to the issues in the case and the categories of document, without the tribunal viewing the documents.
While specific disclosure is routinely a matter for the preliminary hearing, the matter can also be decided during the trial itself.
- An employment tribunal cannot order the disclosure of documents simply on the basis that they are relevant or potentially relevant.
- A decision as to specific disclosure can be made on the basis of the parties’ evidence about the documents and without the tribunal viewing the documents for itself.
- It is for the applicant to provide evidence establishing a case for specific disclosure, with the option for the respondent to show why the documents should not be disclosed.
- Any disclosure order cannot exceed what is permitted under the CPR.
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