How to disclose evidence in an Employment Tribunal claim
Content / trigger warning
If you’ve already submitted your ET1, you’ll likely be given a date (at the Case Management Preliminary Hearing if there is one) by which you will be asked to send your evidence documents, or a list of those documents, to the Respondent (usually your employer). This is called disclosure.
You should read the wording of the Case Management Order carefully, and do exactly what the Judge has asked.
How to format your evidence - the List of Documents
You will likely be asked to prepare a List of Documents, which is an index containing all of the documents in chronological order, usually categorised. You will be asked to send this to the Respondent. As well as the list, you may also have to produce the documents themselves (electronic copies should be fine, but check what the order says).
A great way to get started with your List of Documents is to upload your documents to the ‘Evidence’ section in the Valla platform, where you can organise all of your documents in one place, with categories, dates and descriptions.
Use the exercise of preparing your List of Documents to think if there are any “gaps” in your evidence. For example, are there any documents that are cross-referenced, but which you haven’t included? Or, are there missing documents that you need to search for/make a request for? For example, if you are missing part of an email chain.
Even if you haven’t got to the disclosure stage in your case yet, it can still be really useful to gather evidence, and start doing that early on. This is especially important if you think you might want to try settling your case, as a way of showing your employer that you mean business. Read more about how to show your employer you mean business here.
Things not to disclose
There are few types of evidence that you should not include in your List of Documents/disclose to the other side.
These are called privileged documents, and include the following.
Without prejudice documents
If there have been any negotiations with a view to settling the claim, then these are likely to have been without prejudice. You don’t need to disclose without prejudice documents to the other side, because they shouldn’t be used as evidence at the Tribunal.
You also can’t waive without prejudice privilege without both parties agreeing, so make sure that you don’t send any without prejudice communications to the Tribunal.
Documents covered by legal advice privilege
Legal advice privilege covers communications between you and your lawyer. Unlike without prejudice privilege, you can waive legal advice privilege unilaterally by disclosing the relevant documents to the Respondent.
Documents covered by litigation privilege
Litigation privilege covers documents that were prepared confidentially for the purpose of the Tribunal proceedings - this might include, for example, any draft versions of your ET1, or emails you’ve sent to family or friends about the case.
You can waive litigation privilege unilaterally.
Dealing with sensitive information
There may be confidential information in your documents that you don’t feel comfortable disclosing.
If the Tribunal has ordered you to disclose all relevant documents, then you will need to (1) consider if the document is actually relevant and (2) if so, redact it.
For example, let’s imagine you got an email from a colleague which partly discusses your issue, but partly discusses an issue which isn’t relevant to your claim, and which involves another colleague. In these circumstances, you could redact either the whole section of the email, or just the parts such as where names are mentioned which could identify someone. If you’re not sure what to do, take advice on this.
Use Valla to collect evidence for your Employment Tribunal case
Hopefully you are now ready to start looking for evidence to use in your Tribunal case.
You can use the Valla platform to pull together your timeline of events, and easily store, categorise and share your evidence.