You can make a subject access or freedom of information request before filing and during your claim in the Employment Tribunal. If your claim relates to discrimination, you can also use the ACAS Questions Procedure. Once you are in the Employment Tribunal there are 3 ways to get information from your employer using the tribunals case management powers.
Disclosure in the Employment Tribunal
At the Preliminary Hearing, the Judge will ask you and your employer to provide the list and copies of documents that you are going to rely on at the final hearing to the Employment Tribunal. This is called Standard Disclosure and is about providing the evidence that will be relied on in the case. All documents relevant to an issue in the claim that are your possession, custody or control should be disclosed to your employer. This includes the documents on which you will rely, as well as the documents which adversely affect your case. The rules on disclosure apply to you and your employer equally, so your employer must do the same for you. [ see How to prepare your documents for the Employment Tribunal, Getting information from the other side (Disclosure)]
6 Step Process
1 You supply your a) list of documents, b) the actual documents (scanned and saved in a zipped file)
2 Your employer supplies you with their a) list of documents, b) the actual documents (scanned and saved in a zipped file)
3 You ask your employer for any other documents that you need which they have not supplied.
4 If they do not supply those documents, you write to the Employment Tribunal about the particular document or category of documents that you want so that the Tribunal can order your Employer to supply the documents. This is called an application for specific disclosure.
5 You and your employer agree the final list of documents for the hearing bundle.
6 The hearing bundle is prepared by whoever the Employment Tribunal has given the responsibility to (usually your employer).
After you and your employer have provided your list and copies of documents, those documents will be compiled into a Hearing Bundle (the Bundle). The ET will ask either you or your employer to compile the Bundle. Usually the employer has that responsibility. The documents on the Lists will usually go on to form the bundle of documents which is a folder with numbered (paginated) pages set in chronological order that you and your employer will refer to at the Employment Tribunal hearing.
It is a good idea to prepare for disclosure pretty early on. Make a list of all the relevant documents that you want to use and make sure to place them in chronological order.
Types of Evidence
Documents are anything in which any type of information is recorded. So, computer records, emails, databases, recordings of phone conversations, WhatsApp messages, text messages, instant messages and posts on forums such as Twitter and Facebook. This extends to electronic documents stored on servers and backup systems, and also electronic documents which have been deleted. [see How to prepare your documents for the Employment Tribunal]
Getting Additional Information From Your Employer
You should analyse your employer’s ET3 and think about the evidence that you need to debunk your employer’s case and prove your case. Once you have decided on what information you need from your employer, you can request additional information which you need to make your case. The information that you request must be related to your employer’s defence in the ET3. [see Getting information from the other side (Disclosure)]
Ask for Further and Better Particulars
Write to your employer with specific questions and ask for written answers to those questions. You must refer to specific statements in your employer’s ET3 and ask questions about those statements. Give your employer 7 days to respond. If your employer has not provided the answers by the deadline you should write to the ET and ask for an order that the further and better particulars should be disclosed by your employer.[ see Getting information from the other side (Disclosure)]
Ask for Additional Information
You can ask your employer questions that are not based on statements in their ET3. Give your employer 7 days to respond. If your employer has not provided the answers by the deadline you should write to the ET and ask for an order that the additional information should be disclosed by your employer.[ see Getting information from the other side (Disclosure)]
Ask for Specific Disclosure
The Employment Tribunal can also make an order for specific disclosure if it believes that relevant documents have been withheld. The type of order usually made in such a case is called an ‘ unless order’. It is a draconian order which provides that unless your employer provides the information required by a certain date their response will be struck out and the ET will not consider their defence again.[ see Getting information from the other side (Disclosure)]
Under Rule 31 of the Employment Tribunal Rules of Procedure, the ET has the power to order that any person disclose documents or information to a party or allow a party to inspect such material (by providing copies or otherwise) as might be ordered by a county court. This is called Specific Disclosure.
Here, as in the two other processes, you should first write to your employer for disclosure of the specific documents or categories of documents. You should explain why you require disclosure and give a reasonable deadline for a response. 7 days is reasonable.
If they don’t respond by your deadline, you should write to the ET and ask for an unless order that the additional information should be disclosed by your employer.
Documents Held by Third Parties
Rule 31 of the ET Rules of Procedure also allows you to request documents held by third parties who are not involved in your case. The Employment Tribunal can order any person to disclose documents or information in the same way as a county court can. This is called Third Party Disclosure. Just like the county court, the Employment Tribunal can order third party disclosure if the documents are likely to support your case.[ see Getting information from the other side (Disclosure)]
Documents That Are Discovered Later
The duty to disclose continues throughout the case and does not end on the Employment Tribunal’s deadline for exchange of documents. You can ask for relevant documents that come to your attention by asking your employer for them and making an application to the Employment Tribunal if they refuse.
Consequences of Not Complying
Not complying with the requirements for disclosure carries harsh penalties. The Employment Tribunal can make an order for your Employer to pay your costs incurred by your Employers failure, they can also strike out all or part of your employer’s defence. This can also happen to you if you don’t comply.[ see Getting information from the other side (Disclosure)]
Best of the Web
Presidential Guidance – Case Management: GUIDANCE NOTE 2: DISCLOSURE OF DOCUMENTS AND PREPARING HEARING BUNDLES (page 8)
The tribunal’s powers to issue orders about evidence for a hearing are in the Employment Tribunals Rules of Procedure 2013 in rules
Rule 29 (Case management orders);
Rule 30 (Applications for case management orders); and
Rule 31 (Disclosure of documents and information)
Last Updated: [31/08/2021]