Disclosure is one of the most important stages of an employment tribunal case. Both parties are required to disclose documents that are relevant to the issues in dispute. Getting disclosure right matters: missing key documents can damage your case, while badly handled disclosure can lead to costs orders or worse.
This guide explains how disclosure in employment tribunals works, what counts as relevant, how to respond to a disclosure request and what to do if there is a dispute.
Disclosure in employment tribunals is governed by the Employment Tribunals Rules of Procedure. The key principles are:
The definition is broad. It includes:
Anything that records information in any form is potentially a document for disclosure purposes.
Relevance is judged against the issues in the case as defined in the claim form, the response and any list of issues. A document is relevant if it:
The duty to disclose applies regardless of whether the document helps or hurts your case. Hiding documents that go against you is a serious breach.
Most tribunal directions require the parties to exchange lists of documents and provide copies of relevant documents at the same time. This is typically scheduled around 4 to 6 weeks before the hearing, though exact timing depends on the directions made.
The list of documents identifies what each party considers relevant. It is not just a list of the documents you intend to rely on; it includes all relevant documents in your control, whether they help you or hurt you.
Lists and copies are usually exchanged simultaneously. Each party sends their list to the other and provides copies of all the documents on the list (unless the documents are already in the other side's possession).
After exchange, the parties usually agree a bundle for the hearing. The bundle contains the documents both sides agree should be before the tribunal.
Start with the list of issues (or, if no list, the claim form and response). Identify the specific factual matters in dispute.
For each issue, identify where relevant documents might be found:
Search broadly. It is better to identify a document and decide whether to disclose it than to miss it entirely.
Keep records of where you searched and what you found. If a disclosure dispute arises, this evidence will matter.
Sometimes one party asks specifically for particular categories of documents. The request will usually identify:
You should respond by:
The documents are not relevant to the issues in the case.
The cost and burden of disclosure outweigh the likely value of the documents to the case.
The documents are confidential. Note: confidentiality alone is not usually a ground to withhold disclosure, but it may justify redactions or specific protections.
The documents are protected by legal advice privilege or litigation privilege. These are strict protections and the documents do not need to be disclosed.
Documents marked "without prejudice" relating to settlement negotiations are usually protected from disclosure.
Two main privileges apply:
Communications between a lawyer and their client, made for the purpose of giving or receiving legal advice. The privilege applies to all such communications regardless of whether litigation is contemplated.
Communications between a party (or their lawyer) and any third party, made for the dominant purpose of litigation that is reasonably in prospect or has commenced. This covers, for example, witness statements obtained for litigation.
Privileged documents do not have to be disclosed. They are listed in a privileged section of the disclosure list, with enough detail for the other party to identify them but without revealing the content.
The duty of disclosure applies to documents whether they help or hurt your case. If you discover documents that damage your case:
Where damaging documents exist, your strategy needs to account for them. The best approach is usually to disclose them, address them head-on in your witness statement, and explain the context.
If you believe the other side has not disclosed everything, you can apply for specific disclosure. The application:
The tribunal will consider whether the documents exist, whether they are relevant and whether disclosure is proportionate. Specific disclosure orders are made where the criteria are met.
One side refuses to disclose documents the other believes are relevant. This often goes to the tribunal for a specific disclosure order.
One side has not searched all the locations where relevant documents might exist.
Documents are disclosed close to the hearing. The tribunal may exclude late-disclosed documents or allow more time for the other side to respond.
Where one side claims privilege over documents the other side believes are not actually privileged.
Documents are disclosed but with parts redacted. The question is whether the redactions are justified.
Most modern tribunal cases involve substantial electronic disclosure. The same principles apply, but the technical issues are different:
For larger cases, agreement on search parameters between the parties is usually needed.
Leaving disclosure to the last minute usually means missing documents. Start early.
Failing to search WhatsApp, Teams, personal email accounts or other locations where relevant material may be found.
Only disclosing favourable documents and withholding unfavourable ones. This is a serious breach and often discovered.
Claiming privilege over documents that are not actually privileged risks the claim being challenged and lost.
Redacting everything that might be sensitive. Tribunals look unfavourably on excessive redaction.
Ignoring or refusing reasonable disclosure requests increases the likelihood of a specific disclosure order against you.
The tribunal can impose sanctions for failures of disclosure, including:
The most serious sanctions are reserved for deliberate breaches.
Disclosure can be a strategic minefield. The decisions about what to search, what to disclose and what to claim privilege over can significantly affect the case. Taking specialist advice on disclosure strategy, particularly in complex cases, is usually worthwhile.
A direct access barrister with employment law experience can advise on disclosure strategy, draft disclosure-related applications and represent you at any tribunal hearing about disclosure issues.
If the issues in this guide apply to your situation, our team can match you with a barrister who works on cases like yours every week. The enquiry is free and you will receive a clear fixed-fee quote before any work begins. Start your enquiry here.