Handling employment tribunal claims: disclosure, witness evidence and settlement

Maxine Douglas of Clyde & Co provides guidance on the documents and statements involved in the defence of tribunal claims, and on the settlement of claims.

Disclosure and inspection

What is disclosure and why is it needed?

  • Disclosure is the production by all parties of a list of the documents in their possession that are relevant to the claims being brought in the employment tribunal.

  • It enables both parties to gain knowledge of the documents upon which the other party intends to rely and to enable them to assess the merits of the case.

    What does disclosure involve?

  • First, disclosure involves producing and serving on the other party a list of the relevant documents in accordance with the directions of the tribunal.

  • Second, the parties will allow each other to inspect any of the documents listed (unless a document is 'privileged').

    What are 'documents'?

  • The definition of 'document' is not limited to paper documents, but extends to anything upon which evidence or information is recorded, eg tape recordings, e-mails, microfilms, photographs and video tapes.

    Which documents must be disclosed?

  • Generally, all relevant documents should be disclosed, even if they are privileged (although privileged documents need not be produced for inspection). This means that documents on which you intend to rely as well as documents that damage your case or help the other side must be disclosed. However, you need undertake only a reasonable search for these documents.

  • Disclosure is limited to documents already in existence. Therefore a tribunal cannot require a party to create evidence, eg statistical evidence.

  • Only documents that are, or have been, in your control or possession, or documents that you have had a right to take possession of, to inspect or to take copies of, must be disclosed.

    What is 'privilege'?

  • If a document is privileged, it means that a party cannot be compelled to grant inspection of that document.

  • A witness cannot be asked questions that, if answered, would lead to the disclosure of privileged information.

  • Categories of privilege include:

    -         legal professional privilege (ie most communications between a solicitor and his or her client);

    -         litigation privilege (ie certain documents/communications made where the dominant purpose for which they were made or brought into existence is litigation or the reasonable prospect of litigation);

    -         the privilege attaching to 'without prejudice' communications, ie those regarding a possible settlement (although marking a document 'without prejudice' does not always mean that the document will be privileged; in order to be so it must be genuinely aimed at achieving a settlement).

    When is a party under a duty to make a disclosure?

  • There is no general duty, but disclosure is widely encouraged and often ordered by tribunals in order to give all parties an opportunity to familiarise themselves with the case that they have to meet.

  • However, there will be a specific duty if the tribunal makes an order requiring disclosure, as it frequently does.

    Are all 'confidential' documents privileged?

  • Marking a document 'confidential' does not mean that it will be privileged and, depending on the content, the other party may be entitled to inspect it.

    What are the implications of a failure to comply with disclosure obligations?

  • The tribunal may strike out the whole or part of the claim.

  • The tribunal may order costs against the party in default.

    Are there any other means for employees to obtain data from their employer?

  • Employees also have the right to obtain data from their employer or ex-employer by making a data subject access request under the Data Protection Act 1998.

    Witness evidence

    What form does witness evidence take in the employment tribunal?

  • Evidence in the employment tribunal is usually provided by way of witness statements. The parties normally exchange their statements in advance and are then examined and cross-examined on these at the tribunal hearing. It is crucial that a party's witness statements are comprehensive, accurate and true. It will damage a party's case if the statements provided by one of its witnesses are contradictory.

    When does the exchange of witness evidence take place?

  • This normally occurs after the disclosure and inspection of documents has taken place. It is increasingly common for the tribunal to order exchange of statements by a particular date before the hearing.

    What should a witness statement include?

  • A witness statement should be a comprehensive report of the incident/s complained of and the circumstances surrounding that incident/s. If possible, the statement should be in chronological order and refer directly to any documents on which the individual intends to rely.

    What needs to be done in terms of preparing witness evidence?

  • All witnesses should be interviewed as early as possible and their statements drafted.

  • The tribunal will probably order a date for exchange of witness statements. Where it does not, it is sensible for the parties to agree a date for exchange between themselves. Statements should be exchanged simultaneously.

    How should witnesses be prepared for the hearing?

  • All witnesses should be informed of the hearing date, the time the hearing will begin and its venue.

  • Each witness should be provided with a copy of his or her statement in advance of the hearing.

  • Each witness should also be given copies of any documents that he or she refers to in the statement, or to which he or she is likely to be referred during the hearing.

  • It is important to run through with the witness what will happen at the tribunal, eg the oaths, cross-examination and the likely timetable of the hearing.

    What should you do if an important witness cannot make the date for which the hearing is set?

  • It is important to apply, without delay, to the tribunal for a postponement, giving detailed reasons of why this is required. More and more frequently tribunals are insisting that evidence, such as travel documents, are submitted with any such application to establish the genuine nature of the request.

    What happens if a case involves expert evidence?

  • Experts (for example those called in disability discrimination cases) will also be expected to produce a written statement.

  • The tribunal will prefer a joint expert to be instructed and the parties should consider whether this is possible in the circumstances.

  • A letter of instruction should be sent to the expert, specifying in detail any particular questions that the expert is to answer and/or general subjects that he or she is to address.

  • The letter of instruction should emphasise the expert's duty to the tribunal.

  • Where it is necessary to instruct separate experts, the tribunal may encourage them to attend a 'without prejudice' meeting to try and resolve any conflict between them prior to the tribunal hearing.

    Settlement

    What are the advantages for an employer of a pre-hearing settlement?

  • There is no need for a hearing, therefore:

    -         the legal costs in both preparation for and attending the hearing are avoided;

    -         disruptions to the business through the necessary attendance of witnesses at the hearing are minimised;

    -         the risk of bad publicity - as tribunals are open to the public and the media - is avoided.

    What is the procedure for settling an employment claim?

  • Settlement can be instigated between the parties directly, through their legal representatives (if appropriate) or through the offices of ACAS. Whenever an employment tribunal application is made an ACAS officer will be assigned to the claim and will help the parties resolve their disputes and negotiate a settlement if possible.

  • The parties, once they have reached agreement on terms, must sign a settlement agreement setting out its terms and in particular providing for the withdrawal of tribunal proceedings. A settlement can in be in two forms: a COT3 or a compromise agreement.

    What is the difference between a COT3 and a compromise agreement?

  • A COT3 will be used only where proceedings have been started and an ACAS officer is involved. The ACAS officer may, for example, help suggest wording for various clauses of the COT3 or draft it in its entirety.

  • A compromise agreement must comply with certain statutory criteria and requires solicitors (or other suitably qualified persons) to be involved - a party must have received advice from a suitably qualified person on the consequences of signing the agreement in order for it to be valid.

    What are the consequences of signing a COT3 or a compromise agreement?

  • It binds the parties legally, meaning that an employee cannot subsequently present the same complaint to an employment tribunal.

    Next week's article will answer questions on what to expect at an employment tribunal hearing.

    Maxine Douglas is a member of the employment team at Clyde & Co (Maxine.Douglas@clyde.co.uk)

    Further information on Clyde & Co can be accessed at www.clydeco.com