Application for discovery

Q. Our member has no witnesses to call in support of his tribunal over an unfair dismissal through redundancy selection claim. We are therefore relying on the documentary evidence held by the employer. How can we get hold of the relevant information?

A. The tribunal will normally direct both parties to disclose all relevant information or all information upon which they intend to rely: the exact wording of the directions is obviously important.

If you have reason for believing that the employer has not provided all the information by the specified date, complain to the tribunal and you can make an application for discovery. This should be limited to that which is strictly necessary. Preferably cite reasons why you suspect that additional documents exist; why they can be easily retrieved by the employer; and why the tribunal cannot fairly dispose of the proceedings without the missing information.

It may be necessary to make more than one application for discovery, with suitable amendments, in light of the reasons given for rejection by the tribunal. The key case is Science Research Council v Nasse [1979] ICR 921.

A supplementary route is to submit a data protection search. For a fee of £10, this should capture within 40 days all information that either refers to, or is about, the individual concerned. Unfortunately enforcement through the Information Commissioner’s Office is slow.