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Disclosure obligations - Beware of emails coming back to bite you!
Dear Hrlaw Auntie
I am a HR Manager. One of our former employees, Matthew, has issued proceedings against us in the Employment Tribunal for unfair dismissal. We do not accept that we unfairly dismissed Matthew, who was a poor performer. Matthew is aged 58. At the time of Matthew’s dismissal the company’s normal retirement age was 60 but in the next few weeks our policy will be changing and the normal retirement age will become age 65.
We are at the stage in the proceedings where the Tribunal has directed disclosure of “relevant documents”. I know that we have certain disclosure obligations but I am a little confused at the extent of these. I assumed that we only had to disclose those documents upon which we wished to rely at the hearing, but a friend of mine has told me that our obligations are much wider than this and we have to disclose everything. I am worried by this because one of our more senior employees sent me an e-mail a month before we dismissed Matthew which said “I don’t care what you do but I want Matthew gone – he’s a trouble maker”. If we have to disclose this e-mail it will almost certainly prejudice our defence. Should we also be disclosing the new retirement policy even though it will come into effect after Matthew’s dismissal?
Dumbfounded about Disclosure
You are correct in thinking that you have certain disclosure obligations. Disclosure is the stage in litigation at which each party is required to disclose to the other party all relevant documents within that party’s control. There are certain exceptions to this rule, for example if a document is protected by legal advice privilege or litigation privilege. The rules of disclosure in the Employment Tribunal are derived from the Civil Procedure Rules which apply in High Court cases.
The precise scope of your obligations will depend on the order made by the Tribunal. In your case the Tribunal has ordered disclosure of “relevant documents” which is analogous to the standard disclosure duty under the Civil Procedure Rules. This normally requires each party to disclose:
• The documents on which you rely; and
• The documents which:
- adversely affect your own case;
- adversely affect another party’s case; or
- support another party’s case
. A “document” is defined as anything in which information of any description is recorded and therefore includes e-mails. This means that you will have to disclose the rather unhelpful e-mail from your senior employee on the basis that it is a document which (i) adversely affects your case and (ii) potentially supports Matthew’s case – i.e. that performance was not the real reason for his dismissal.
You will also need to disclose the new retirement policy when it comes into effect. This is because the obligation to disclose relevant documents continues throughout the course of the proceedings. This issue was highlighted in the recent case of Scott v Commissioners of Inland Revenue. In that case Mr Scott’s employers retired him on medical grounds when he was aged 56. He brought proceedings against the Inland Revenue for unfair dismissal, sex and disability discrimination and victimisation and was successful under each head. Compensation of £98,378 was awarded at a remedies hearing in November 2002. Compensation for future loss of earnings was calculated on the basis that Mr Scott would have had to retire at age 60 as that was the employer’s normal retirement age. Mr Scott appealed to the EAT, amongst other things, against the assessment of compensation. Before his appeal was heard he learned that the Inland Revenue had changed its rules in March 2002 to allow those who fulfilled certain health criteria to have the option of continuing to work up to age 65. Mr Scott had always said that he wanted to work beyond age 60. Despite the Tribunal having made an order for High Court disclosure, the new retirement policy was not disclosed. Accordingly, Mr Scott applied to amend his notice of appeal but the EAT Registrar refused to allow him. Mr Scott appealed to the Court of Appeal and was successful. The Court of Appeal held that the EAT Registrar had been wrong not to allow Mr Scott to amend his notice of appeal. The Tribunal chairman had ordered High Court disclosure, which is a continuous obligation throughout the currency of the proceedings. The employers ought to have disclosed their new retirement policy as soon as it was introduced. The prospective duration of the employee’s employment had he not been dismissed would have been central to the Tribunal’s computation of the award of compensation.
Disclosure is a complex process and it is important as an employer to ensure that all relevant documents (whether helpful to your case or not) are preserved and not disposed of, even if they appear to be unimportant. Obviously the e-mail from your senior employee is not helpful. E-mails and internal memos are often fired off in the heat of the moment with no thought given as to whether the document will come back to bite the sender. In an ideal world one would always consider whether a document is likely to be discloseable before creating it but, in practice, this rarely happens. In order to minimise the risk of similar e-mails landing on your desk in the future you might like to warn your senior employees about the dangers of committing their thoughts about an individual employee (outside a formal process) to paper. The effect of your new retirement policy might not be as bad as in the Scott case since compensation for unfair dismissal (which is what Matthew is claiming) is capped at £55,000. Mr Scott had a discrimination complaint and therefore the compensation to which he was entitled was uncapped. Therefore, even if Matthew’s complaint is successful and he is able to claim compensation for future loss of earnings to age 65, the compensation cap should apply to limit the company’s liability.