Exchange of documents

If one party refuses to produce necessary documents, the tribunal can be asked to make an order compelling their production.

To compel an employer to produce a document, it is not enough to show that the document is “relevant”. Instead, the document must be “necessary” for the fair resolution of the claim, for example, because it will save costs. Any document that is necessary must be disclosed, whether or not it is confidential (Plymouth City Council v White [2013] UKEAT/0333/13/LA). Legitimate concerns about confidentiality, such as the confidentiality of other employees, can be dealt with by, for example, finding a different, non-confidential source for the evidence, or ordering that confidential information must be covered up — a process known as “redaction”.

Privileged documents are mainly communications between legal representatives or between lawyers and their clients. These need not be disclosed and instead can be kept confidential. A party can waive their right to privilege, sometimes unintentionally, by revealing the content of their legal advice to their employer. Where this happens, they can lose the right to prevent the whole document being referred to in the case (Brunel University v Webster & Vaseghi [2007] EWCA Civ 482). Disclosing part of a document will normally result in waiver of privilege over the whole of the document. Parties are not allowed to pick and choose what they show the tribunal.

Legal professional privilege does not extend to communications to and from a firm of employment consultants (Walter Lilly & Co Limited v Mackay [2012] EWHC 649).