Exchange of documents 





Under a standard case management order (see above), both parties must produce copies of all their relevant documents within a fixed timescale, unless the documents are privileged (that is, protected) from disclosure. Only documents that are relevant to specific issues in dispute need to be listed and disclosed. 


The duty to disclose covers electronic documents such as emails, word processed documents, including earlier drafts, information on databases, electronic documents that have been deleted but are stored on a server, and metadata about documents, such as the date and time of creation or modification of a word-processed document. Electronic evidence of this type is increasingly important. If a claimant is worried that important electronic evidence might be destroyed in advance of an order for disclosure, it is sensible to write formally to the employer reminding them of the need to preserve it. 






Concerns about confidentiality or commercial sensitivity do not override the duty to disclose (Plymouth City Council v White [2013] UKEAT/0333/13/LA) but a tribunal can take these concerns into account. One solution is to cover up the confidential part (called redaction). Another is to find a different non-confidential source of the same evidence. 



“Privileged“ documents must not be disclosed to the other side. They should be kept confidential. There are two categories:


• communications between a solicitor, barrister or trainee solicitor and their client giving legal advice (legal advice privilege); and



• confidential communications the main purpose of which is actual or contemplated litigation (litigation privilege). 



A party can sometimes accidentally lose this protection, for example, by selectively revealing the best bits of their legal advice. Where this happens, they can be ordered to disclose all of it. This is because litigants are not allowed to pick and choose what they show the tribunal (Brunel University v Webster & Vaseghi [2007] EWCA Civ 482).



Legal advice privilege is very narrow. It covers only communications between a solicitor or barrister and their client. It does not cover communications from business or employment consultants (Walter Lilly & Co Limited v Mackay [2012] EWHC 649) or trade union reps, even if those communications contain legal advice. Even so, these kinds of communication are confidential and tribunals must not order their disclosure unless specific documents are shown to be “necessary” in order fairly to decide the case. This is a high standard to pass. It was recently tested in the case of Dhanda v TSB Bank PLC [2017] UKEAT/0294/17/BA, when an employer’s solicitor asked for an order compelling disclosure of the entire case file held by the claimant’s union rep concerning her complaint. The application was dismissed because the employer could not identify a single disputed issue in the case that was likely to be proved as a result of the production of any specific document held by the rep. (The claimant also argued that the case file was protected from disclosure by Articles 8 (privacy) and 11 (freedom of association) of the European Convention on Human Rights but there was no need to test these arguments in this case). 


Internal emails and notes between management and HR about how best to handle an employment dispute are not protected by legal advice privilege, even if they are reflecting on legal advice from a solicitor.


Legal advice privilege cannot be used to keep confidential a solicitor’s legal advice on how to deny someone their rights to protection from discrimination (X v Y Limited [2018] UKEAT/0261/17/JO). 


If a party’s list of documents is not produced or is incomplete, the tribunal can be asked to make an order compelling production and eventually an “unless” order (see page 480).
The tribunal will not order disclosure just because a document is “relevant”. Instead, the correct test is much more restrictive. The specific document must be necessary to decide the claim fairly or to save expense. This is much harder to show (Science Research Council v Nasse [1979] IRLR 465).