You may be familiar with the standard Tribunal Order that all documents relevant to the issues (submitted as part of the claim) that are in a party’s possession, custody or control, should be disclosed to the other party. This includes both documentation on which the employer relies, as well as those adversely affecting their case. To put it another way, those documents which will support the employee’s case as well.
It is tempting to view this as relating to documentary evidence only, but Judges are at pains now to explain to the parties in pre-hearing reviews that it is not just paperwork but can also include audio recordings, and these days, it is also likely to include posts from Facebook, What’s App conversations, text messages and the like. The duty of disclosure is a continuing one so that parties have to continue disclosing anything that comes to light after the main disclosure exercise has been undertaken.
The issue that we are seeing more of is managers communicating informally, using text messages and What’s App, and because of the informal nature of these medium, it is tempting for the language that people are using to become more informal and for people to let their guard down. Therefore, more managers should realise that what they are committing to writing could, in a future case, come before a Judge, and to understand the possibility of this and to remember that when they are committing anything to writing, only commit that which they would be happy to show a Judge in writing. They can always speak to each other face to face or over the telephone!
It is particularly important that HR also live by this rule, as we have previously had to settle cases before disclosure knowing there was correspondence that we would otherwise have to disclose that, for example, reveals an intention to dismiss long before it happened.
Whilst people might think the chance of litigation is slim, the chances of a data protection subject access request are possibly greater, and all communications that have taken place, from a work perspective, even on personal mobile phones, are in the view of the Information Commissioner’s Office caught by the request if they have been generated for ‘work’.