If an employee issues an employment tribunal claim, what documents will the employer be required to disclose?
In employment tribunal proceedings, the tribunal will usually order the employer to disclose all documents, communications or correspondence relevant to the matter. This effectively makes such material public knowledge, which can be problematic where the employer has received any advice from internal or external HR consultants that may prove controversial.
A major benefit of instructing a solicitor to provide employment law advice is that any communication is confidential and there is little risk that the employer will be required to disclose it to an employment tribunal.
This is because of something called ‘privilege’ which exist between lawyers and their clients.
While direct legal advice will almost always be confidential, a recent case has shown that there are limits to how far privilege extends.
In 2021, a university employee raised a grievance alleging racial abuse, harassment, bullying and discrimination. Later that year, the employee issued employment tribunal proceedings against the university.
In February 2022, the university completed an internal grievance investigation report and asked external legal advisers to review it. The final version of the report contained a footnote stating that the report had been ‘amended and reissued following independent legal advice’.
The employee applied for disclosure of the original version, but the university resisted on the basis that a comparison of the two versions could reveal the (privileged) legal advice it had received.
The tribunal disagreed and held that the fact that the university had taken legal advice on the original report did not make the report itself privileged. The university appealed (twice) but on both occasions, the appeal was dismissed. The original report was not privileged when it was created, and the court was not prepared to apply retrospective privilege to it.
In addition, the only reason that the employee might be able to work out any legal advice given was because the university had revealed the existence of the advice by referring to it in the footnote. By adding the footnote, the university had waived any privilege attached to the advice received.
Going forward, all employers should bear in mind that any non-privileged correspondence or communications (internal or external) regarding employment processes (such as redundancies, performance management, disciplinary proceedings or grievances) may need to be disclosed if the employee subsequently issues an employment tribunal claim.
One way of ensuring confidentiality via privilege is to engage in direct correspondence with a solicitor for the purpose of seeking legal advice.
DFA Law can help ensure that privilege is maintained and by doing so can offer 100% confidential legal advice on any employment law issue.
For further information contact Michael Nadin at DFA Law on 01604 609566, email michael.nadin@dfalaw.co.uk or visit the website.
