Bringing a claim in the Employment Tribunal can feel overwhelming, particularly if you are representing yourself and are unfamiliar with legal terms and procedures. One concept that often causes confusion for those bringing a claim is disclosure, and in particular the idea of making an Employment Tribunal application for specific disclosure. You may hear phrases such as standard disclosure, specific disclosure, or an application for disclosure and wonder what they actually mean for your case.
This blog is particularly relevant to those who have brought, or are considering bringing, an Employment Tribunal claim and who are representing themselves. It explains what disclosure is, why it matters, and focuses in particular on applications for specific disclosure—what they are, when they are used, and how they can affect the outcome of your claim.
Contents
- What is disclosure in the Employment Tribunal?
- Why effectively managing disclosure is central to your case
- What is Employment Tribunal standard disclosure?
- Common problems with Employment Tribunal disclosure
- What is an application for specific disclosure?
- When might you need to apply for specific disclosure?
- The value of professional advice regarding an Employment Tribunal application for specific disclosure
What is disclosure in the Employment Tribunal?
Essentially, disclosure is the process by which both sides in an Employment Tribunal case are required to share relevant material with each other.
Disclosure is not optional. It is a formal requirement of Employment Tribunal proceedings, and the Tribunal will usually issue case management orders (often called directions) setting out what each party must disclose and by when. For more information on Employment Tribunal case management orders, read our blog.
The material that needs to be disclosed may include emails, letters, messages etc. However, as will be pointed out later, the key point is not about what the documents are but whether or not that material is relevant or necessary in order for the Employment Tribunal to decide the issues in your case.
Complying fully with disclosure obligations is therefore essential. Failure to comply with Employment Tribunal case management orders on disclosure may result in sanctions being imposed by the Tribunal.
Why effectively managing disclosure is central to your case
Once it is agreed between the parties that all relevant material has been disclosed, all that material will be combined into a single document (which is often referred to as the bundle). Only documents that are included in the agreed bundle can be referred to at the final hearing. This generally means that if an important document is not disclosed and does not make it into the bundle, you may not be able to rely on it when giving evidence or questioning witnesses.
If the parties cannot agree on whether certain material should be included in the bundle, it may be necessary to ask the Employment Tribunal to decide whether that material should be included. The Tribunal can give directions and, if appropriate, order that disputed documents are added to the bundle.
What is Employment Tribunal standard disclosure?
The Tribunal will often identify the issues at a preliminary hearing. If you would like to find out more about what happens at an Employment Tribunal preliminary hearing, read our blog. The issues are the key questions or legal tests the Tribunal must decide at the hearing. Therefore, the issues depend on the claims being made. For example, the issues might include:
- Was the dismissal fair in all the circumstances? (Unfair dismissal)
- Was the Claimant disabled within the definition of the Equality Act 2010 at the relevant time? (Disability)
- Did the Respondent subject the Claimant to less favourable treatment? (Direct discrimination)
Parties are generally only required to disclose documents that are necessary to decide the issues in the case.
Standard disclosure usually means:
Each party prepares a list of documents that are relevant to the issues in the case.
The list includes documents that:
Support their case
Harm their case
If the material is relevant, is it necessary for the issues in the case to be decided?
Common problems with Employment Tribunal disclosure
Claimants frequently encounter difficulties such as:
- The Respondent providing few documents
- Material that is thought to be necessary being missing
- Vague descriptions such as miscellaneous emails
- Assertions that relevant material no longer exists
- Refusal to disclose material on the basis that it is said to be irrelevant
In such circumstances, it may be suspected that relevant material has been withheld. This is where specific disclosure may be potentially necessary.
What is an application for specific disclosure?
An application for specific disclosure is a request for material that was not provided in the first instance. In the event that the parties cannot agree, a formal request could potentially be made to the Employment Tribunal asking it to order the other party to disclose particular documents or categories of documents.
When might you need to apply for specific disclosure?
You might consider an applications for specific disclosure if:
- You believe that documents, which are necessary for the issues in your case to be decided, exist but have not been disclosed.
- Documents referred to in emails or letters have not been provided.
- The other side has refused to disclose documents you requested.
The value of professional advice regarding an Employment Tribunal application for specific disclosure
The Employment Judge has a broad discretion to grant or reject applications for disclosure, and such decisions may be based on the request (the application) alone.
While employees are allowed to make disclosure applications themselves, knowing what to ask for and how to ask for it is not straightforward.
A professional adviser can help identify the documents that matter, explain why they are (or are not) necessary for the issues in the case to be decided, and ensure that any request is presented in a way that maximises the chances of success.
Professional advisers can:
- Identify what documents are likely to exist
- Advise on what is genuinely relevant or necessary
- Draft focused, persuasive applications
- Anticipate and counter objections from the other side
Disclosure is one of the most important stages of an Employment Tribunal claim, especially for employees who may have limited access to material. An application for specific disclosure is a powerful tool when used correctly, but it must be handled with thought and care
Understanding the basics is useful. However, when the outcome of your case may depend on particular material being considered at an Employment Tribunal hearing, professional guidance can be invaluable.
If you are unsure whether disclosure has been properly handled in your case, or if you believe important documents are missing, seeking expert advice early could be one of the most important decisions you make in your Employment Tribunal process.
Plotkin & Chandler works exclusively in the areas of HR and employment law and assists both employees and employers.
We advise on all aspects of the Employment Tribunal process, including disclosure. Whether you are bringing an Employment Tribunal claim, or defending one, we can help.
Please contact us on 020 3923 8616 or via email on info@plotkinandchandler.com to discuss your needs and the ways in which we can help.
