Niall McMullan, Associate Partner, highlights the onus on respective parties to disclose all documentation relevant to the issues in Industrial Tribunal proceedings
It is the Industrial Tribunal’s standard direction that all documentation relevant to an issue in a claim must be disclosed. This includes documentation which the Respondent may rely on, as well as documentation which could adversely affect their case. This is a bilateral obligation on the Claimant also.
Along with the Claimant, the Respondent is under an ongoing duty throughout proceedings to disclose relevant documentation and must carry out a reasonable search for same which would be in their possession, custody or power.
The failure for the Respondent to provide the Claimant and the Tribunal with relevant documentation was discussed in a recent Decision of the Northern Ireland Tribunal, in the case of Maria McKeith V Ardoyne Association, Case Reference 1188/15IT.
Ms McKeith had brought proceedings against Ardoyne Association (an unincorporated association), for claims of Unfair Dismissal and Direct Disability Discrimination.
With regards to the Respondent's failure to disclose discovery, the Tribunal panel stated “…it is clear that the Respondent failed to properly provide discovery of relevant documents as reasonably requested by the Claimant or as ordered by the Tribunal…”
“…it is highly improbable that the Respondent organisation did not have that document and even more highly improbable that they did not appreciate its relevance to this case…”
It is essential that the Respondent is aware of the disclosure process and the importance of same, so it can comply with its own duties and the Tribunal’s requirements.
If the Respondent fails to adhere to the Tribunal’s requirements in relation to the disclosure process, there is a risk that inferences may be drawn if it appears it deliberately failed to disclose relevant documentation. It may be damaging to their case and could place the Respondent’s credibility into question as seen in the present case.
In a condemning Decision for the Respondent, the Tribunal remarked that;
“…there is a disturbing pattern of documentation, which on its face potentially lent some support to the Claimant’s case, being produced late, reluctantly and in piecemeal fashion…”
“…it calls into question both the credibility of Mrs Burns (Manager) and the attitude of the Respondent organisation to both the Claimant and these proceedings…”
In determining that the Claimant had been unfairly dismissed and discriminated against on the grounds of her disability, the Tribunal stated that “…the Respondent’s response to discovery was reluctant, piecemeal and incomplete. It cannot be explained away as simply a matter of disorganisation. The Respondent had been represented throughout by an experienced Solicitor who had instructed Counsel…”
It continued that “…there was no convincing explanation for the Respondent’s attitude to discovery during this litigation…it was also advised by an experienced Solicitor and by Counsel thereafter…”
Along with the disclosure of relevant documentation, the Tribunal generally places importance on the Respondent’s duty to keep a sufficient note of meetings and to provide same to the Tribunal. This point was affirmed in the case of Lennon v Department for Regional Development, Case Reference 75/11FET.
This present case is a stark reminder for Respondents and all representatives in Industrial Tribunal proceedings of the vital importance of disclosing documents relevant to the issues to be determined. Any failure by the Respondent or the Claimant, to provide all relevant documentation within their possession, custody or power must be explained and justified to the Tribunal, particularly if represented by a legal team throughout the proceedings, as was the case here. Absence of an adequate explanation may result in an adverse inference being drawn against the guilty party.
Niall McMullan is an Associate Partner with Worthingtons Solicitors, Belfast and specialises in Employment Law. He can be contacted using the form, below, or by telephone 02890434015.