Document Disclosure: The Post Office Scandal and its Relevance to Employment Tribunal Cases

The recent resurgence of attention on the Sub-postmaster injustice has again thrust the Post Office into the spotlight. The ITV documentary 'Mr Bates vs The Post Office' has sparked discussions on social media, shedding light on fundamental problems in the unfolding of this scandal. A key concern highlighted was the frequent withholding of documents by the Post Office throughout the investigation.

This issue resonates beyond this specific case, extending to various legal domains, including Employment Tribunal claims. Whether initiating or defending an Employment Tribunal claim, the imperative nature of document disclosure cannot be overstated. Failing to comply with this obligation carries significant repercussions for both parties involved, echoing the challenges witnessed in the Sub-postmaster injustice case.

In this article, Grace Kabasele from our Employment Litigation team offers valuable insights into the significance of document disclosure and outlines potential consequences in the event of non-compliance in Employment Tribunal claims.

What is document disclosure?

Disclosure is the process where relevant and essential documents are provided to the other party. This ensures fairness by granting both parties access to all documents the opposing party intends to rely upon while presenting their case in the Tribunal. Parties must disclose all documents, not just those that will help their case but also those that may assist the opposition. It is a case of 'cards on the table' as litigation today is not about ambushing the other party but instead being transparent about the evidence held.

The documents may include employment contracts, policies, medical information, letters and internal communications such as email chains and video or other recordings.

When do I need to disclose my documents?

During a case, the Employment Tribunal will provide a case management order to both parties. This informs them of dates by which they must submit certain documentation to each other or the Tribunal. This includes a deadline by which disclosure is due.

Parties should note that the duty of disclosure is ongoing throughout the proceedings and does not end after the date set by the case management order has passed. If a party later finds a relevant document to the case, this should be disclosed as soon as possible. Failure to do so may result in a costs award, particularly if a hearing is delayed.

What happens when a party fails to disclose documents?

Failure to disclose can also severely affect the credibility and reputation of a party. It may also result in the other party applying to the Employment Tribunal for a disclosure order to seek compliance. If the opposing party persists in non-compliance, the adhering party can seek recourse by applying to the Employment Tribunal to have the claim or response struck out.

When reviewing an application for a claim to be struck out, the Employment Tribunal considers whether it is possible to hold a fair trial within the allocated timeframe considering the non-compliance. 

Failure to comply can be detrimental to either party. For example, the Respondent's non-compliance in Emuemukoro v Croma Vigilant (Scotland) Ltd UK resulted in the Employment Tribunal awarding a judgment in the Claimant's favour without a final hearing taking place. An appeal may follow if a document appears after the judgment, but it may cast doubt on its validity.

However, documents that are classed as privileged or protected do not need to be disclosed. These may include lawyer-client communication, personal data covered by data protection laws, medical records or restricted commercial information. 

To summarise 

The disclosure of documents is an integral part of Employment Tribunal claims, and failing to comply can cause significant damage, with tribunals taking non-compliance very seriously. To ensure an Employment Tribunal process goes as smoothly as possible, parties should be mindful of deadlines set by the Tribunal. 

Please get in touch with our Employment Litigation team for friendly advice and support on disclosure matters. If you are dealing with a Tribunal claim, either as an employee or employer, we can assist with matters of disclosure. You can contact us on 023 8063 9311 or email enquiries@warnergoodman.co.uk.