Exchange of documents 


Under a standard case management order (see above), both parties must produce copies of all their relevant documents within the fixed timescale stated on the order. If the list is not produced or is incomplete, the tribunal can be asked to make an order compelling production. 


Any necessary document must be disclosed, whether or not it is confidential (Plymouth City Council v White [2013] UKEAT/0333/13/LA). If an employer has genuine confidentiality concerns, for example, wanting to protect the identity of other employees, it should deal with these, for example, by covering up the confidential part — a process known as redaction. 


One special category of documents in court proceedings is known as privileged documents. Privileged documents should not be disclosed and can be kept confidential. Privileged documents are mainly communications between lawyers and their clients. A party can waive their right to keep these documents secret. Sometimes this happens accidentally, for example, where a claimant reveals some parts of legal advice they have received to their employer but not all of it. This can result in them being ordered to disclose the whole of the advice. Parties are not allowed to pick and choose what they show the tribunal (Brunel University v Webster & Vaseghi [2007] EWCA Civ 482). 


Communications between an employer and business/employment consultants who are not solicitors or barristers are not normally protected by legal professional privilege (Walter Lilly & Co Limited v Mackay [2012] EWHC 649). Internal emails between management and HR discussing the legal advice they have received and how best to respond to it are also not protected.