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Discovery application
The resolution of cases generally requires a tribunal to favour one side’s word over the other’s. As the subject matter of a claim usually concerns events that occurred months earlier, where there is a relevant contemporaneously-produced document, it will very likely be given considerable weight by the tribunal — and may even be treated as determining the issue.
Emails are especially important. However, email communication can encourage quick, ill-considered remarks and any off-the-cuff statements could be interpreted as revealing the true opinion and attitudes of employers.
Both parties will routinely be given the default direction by the tribunal to disclose all relevant documents — or at least all relevant evidence upon which they intend to rely. However, if the employer is not legally represented, the documents that it chooses to disclose may be limited.
If you suspect or know that important documents are missing, you should ask the other side to release the additional documents. If the information is not forthcoming within a reasonable period (14 days, or less if the hearing is approaching), apply to the tribunal for the information to be made available — i.e. make an application for discovery. (From late 2013 there will be a £60 charge for making an application during a claim — although, in certain circumstances, a judge may order that the other party reimburse the application-maker).
An example of an application for discovery is detailed below:
Example application for discovery
Dear (Name),
I should be grateful if you would put the following application before a Judge.
The Respondent resists disclosing emails requested by the Claimant on [dates] (correspondence attached) relating to the decision to make him redundant following his transfer to company C. These documents are important in demonstrating whether a fair redundancy consultation took place.
The Respondent has stated that no documents about the decision to make the Claimant redundant were generated or are retrievable. However, the Claimant believes that the Respondent is mistaken not least because the acquisition of company B by the Respondent was a high-profile transaction that involved many senior managers and directors of the Respondent. For example, the B employee reps met on more than one occasion with managers of the Respondent (including Ms D, Mr E and Ms F) to discuss the future employment of B staff
The Claimant believes that relevant documents about the decision to make him redundant exist and could easily be made available to him by the Respondent. Therefore the Claimant requests that a Judge grants an order that the Respondent comply with the Tribunal’s directions of 7 July 2012/ comply with an order in the following terms:
That by 1 October 2012 the Respondent shall provide disclosure to the Claimant by list and with simultaneous provision of copies of all correspondence generated or received by Ms D, Mr E and Ms F in which the termination of the Claimant’s employment was mentioned.
In making this application the Claimant believes that the documents sought are of such relevance that an order for discovery is necessary to fairly dispose of the proceedings (as per Science Research Council v. Nasse [1979] ICR 921). Furthermore, the Claimant suggests that this is a precise and narrow request for a set of documents that the Respondent can easily identify. Finally, this information is electronically retrievable in a matter of moments by the Respondent’s IT department.
This email is copied to the Respondent. The Respondent should note that if it objects to the application, it must write to the Tribunal within seven days of receiving this email explaining the reasons for its objection, and should copy that response to me. Rule 11 of the Procedure Rules has been complied with in relation to this application.
Yours faithfully,