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. If the list is not produced or is incomplete, the tribunal can be asked to make an order compelling production, and eventually an “unless” order (see page 462).


The tribunal will not order the disclosure of a document just because it is “relevant”. The correct test is more restrictive. Disclosure will be only ordered if it is “necessary” to dispose fairly of the claim or to save expense (Science Research Council v Nasse [1979] IRLR 465). 


Only documents that are relevant to the specific issues in dispute in the case need be disclosed. Parties are not allowed to fish for documents looking for other issues they can raise.


This duty to disclose also extends to electronic documents such as emails, word processed documents (including 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). If a claimant is concerned that important electronic evidence might be destroyed by the employer 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 the confidentiality or sensitivity of documents 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 way of dealing with them is to cover up the confidential part (known as redaction), or to find a different, non-confidential source of the same information. 


Privileged documents are protected and must not be disclosed. 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 with a party where the main purpose is actual or contemplated litigation (litigation privilege). 


A party can sometimes accidentally lose this protection, for example, by selectively revealing only the best parts of their legal advice. They can be ordered to disclose all of it. This is because parties 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. In particular, it does not protect communications containing legal advice from business or employment consultants (Walter Lilly & Co Limited v Mackay [2012] EWHC 649) or trade union reps. However, such communications are confidential and tribunals must not order disclosure unless specific documents are identified as “necessary” for the fair disposal of the case. 


In Dhanda v TSB Bank PLC [2017] UKEAT/0294/17/BA, a request by an employer’s solicitor for copies of documents held by a union rep from whom the claimant had sought advice was dismissed because the employer could not identify any disputed issue in the case that was likely to be proved by the production of any specific document held by the rep. 


Internal emails and notes between management and HR about the best strategy to adopt when dealing with an employment dispute are not protected by legal advice privilege.


Without prejudice negotiations or so called “protected conversations” must not be disclosed in evidence unless there is evidence of clear impropriety such as unlawful discrimination (BNP v Mezzotero [2004] IRLR 508) (see also page 472).