Preparing evidence for an employment tribunal in Scotland

9 min readOct 29, 2018

This advice applies to Scotland only

This section explains:

How you can obtain information and documents from the respondent to help prove your case
When and how to exchange document evidence with the respondent
How to put all the documents together into a bundle for the hearing (the ‘hearing bundle’)

The tribunal’s powers to issue orders about evidence for a hearing are in Schedule 1 to the Employment Tribunals Rules of Procedure 2013 in rules:

Rule 29 (Case management orders);

Rule 30 (Applications for case management orders);

Rule 31 (Disclosure of documents and information); and

The Employment Tribunals (Scotland) Practice Direction number 1: Providing a List of Documents 14 days before a Hearing

Evidence

You can ask that the respondent provides:-

clarification about something they’ve said in their ET3 (called requesting ‘additional information’ or ‘further particulars’ or ‘further specification’) or
any other information that would help you to prepare your case, such as information about comparators or
specific documents

Requesting additional information about the ET3 isn’t done in every (or even the majority) of cases. You should only do it where you cannot understand from the ET3 exactly what the respondent’s defence to the case is. If you disagree with the respondent’s defence in the ET3 you should gather evidence to dispute their version of events. If you ask for too much information, you may not get any answer.

If there are specific documents you think would help you prepare your case you can ask for them.

How to obtain information or documents from the respondent

Ask the respondent first

When any information or document is required, the first course of action would be to write to the respondent and ask them to disclose it. Be as clear as possible about the information or document you want, and how it’s relevant to the issues in the case. You should also set a reasonable time limit for complying with your request (usually 14 days) and say that, if this is not complied with, you will ask for an order from the tribunal.

Example letter to the respondent requesting additional information about the ET3
Dear
[Case name and number]
Request for additional information about the ET3
I writing to you to request additional information about the ET3 you submitted in this claim. . I am asking you for this because the ET3 did not give me enough information to understand the basis of your defence, meaning I am unable to prepare for a hearing.
ET3 paragraph 3 states “The Claimant was often late for work”
Please specify the Claimant’s agreed arrival time, all dates on which she is alleged to have been late and when this was brought to the Claimant’s attention.
I would be grateful if you could provide this information within 14 days, to avoid the need to ask the tribunal to make an order.
Yours faithfully

Make an application for an order

If the respondent will not provide the information voluntarily, you can make an application by writing to the tribunal office. This can be done by letter or, more commonly, by email.

Your letter or email to the Tribunal should explain:

that you are asking the tribunal to make an order that the respondent provide information or disclose documents relevant to your case
what information or documents(s) you want — be as specific as possible
which issues in the case the evidence is relevant to
that you have already asked the respondent to disclose them voluntarily (and explain any response you received)
if there’s an urgent need for the evidence, explain why
say that you have sent a copy of the letter to the respondent and told them that if they object to the order being made they must notify the tribunal as soon as possible
that you’ve sent a copy of the application to the respondent or, if your employer is legally represented, your employer’s representative. If email is your preferred method of communication, it is advised that you copy the employer or the employer’s representative to your email to the tribunal using the “cc” function

Example letter to tribunal requesting disclosure of documents
Dear Sir / Madam
[Case name and reference number]
I am seeking an order that the tribunal order the respondent to disclose documents I believe they have which are relevant to my case.
My claim is that the respondent discriminated against me by not shortlisting me for a post. I have asked them to disclose
All application forms received for the job with an indication of who was shortlisted for interview
Any criteria used to decide who was shortlisted
The documents are important because I need to identify a comparator for my claim of direct discrimination and cannot do so because I have no information about the applicants who were shortlisted. I have asked for copies of all applications not just those shortlisted because I believe it will show that women are not shortlisted for these roles.
I wrote to the respondent and asked them to send me these documents on 17 July but received no reply. I sent a further email on 30 July. Copies are attached.
I would be obliged if the tribunal would issue an order that the respondent disclose these documents within 14 days.
I have sent a copy of this letter to the respondent and informed them that if they object to the tribunal making this order they must send their objections to the tribunal as soon as possible.
Yours faithfully

What if the respondent doesn’t follow the tribunal’s orders?

If a tribunal doesn’t follow the tribunal’s order you can raise this with them. A tribunal may impose various sanctions on a party who doesn’t comply with an order, including:

that they pay an expenses or preparation time order or
that the whole or part of their claim or response be struck out or
making an ‘unless’ order — that unless the order is complied with the defence will be struck out

Unless orders

In practice, a tribunal is most likely to agree to make an unless order rather than take more serious action such as striking the defence out.

You can write to the tribunal and:

explain which order the respondent hasn’t complied with
explain any action you’ve taken to try to get them to comply (eg writing to remind them)
ask the tribunal to make an order under rule 38 that “unless the respondent comply with the order within 14 days the ET3 will be struck out without further notice”
say that you have sent a copy of the letter to the respondent and told them that if they object to the order being made they must notify the tribunal as soon as possible
remember to send a copy of the application to the respondent

Example letter requesting unless order
Dear Sir / Madam
[Case name and reference number]
On 24 July 2018 the respondent was ordered to disclose the redundancy selection criteria by 22 August 2018.
I did not receive the document and sent a letter to them (copy attached) asking them to send the document urgently.
Without the document the claimant cannot assess the merits of her case and may be wasting the time of both parties and the tribunal in pursuing the case.
I would be obliged if the tribunal would issue an order under rule 30 that unless the Respondent comply with the direction to disclose these documents by 4pm on 20 September that their ET3 be struck out without further notice.
I have sent a copy of this letter to the respondent and informed them that if they object to the tribunal making this order they must send their objections to the tribunal as soon as possible.

Yours faithfully

Disclosing and exchanging documents

Disclosure

Unlike the position in England, there is no requirement for automatic disclosure in Scotland. However, you should check the order that the tribunal has made as it will explain how and when disclosure should be done, if at all.

Exchanging lists of documents prior to hearing

When one of the parties is legally represented they will be asked to send the other side a list of the documents they are going to rely on no later than 14 days before the hearing. It is important to note that this list is limited to documents that the party intends to rely on at the hearing: there is no obligation to list or disclose documents which the party does not intend to rely on (even if these documents may be relevant to the case). A document list could help you understand what evidence the respondent intends to use so you should check it carefully.

The order will say what the claimant’s obligations are in sending a similar list, but even if you are not asked to it’s good practice to do so. This will ensure that both sides know what evidence will be relied on.

If you wish to see a document which has been included in the respondent’s list of documents, you should write to the respondent and request that the respondent voluntary discloses the document to you. In the event that this is unsuccessful, you should apply to the tribunal for an order.

The order might also say that you should agree with the other side to prepare a joint bundle of documents (also called ‘productions’) for the hearing. This means that you will each see the other side’s documents in advance. If this isn’t ordered you might want to try to agree with the respondent that you should exchange documents, if you want to see all of their evidence.

If you aren’t asked to disclose what documents you’re relying on in advance of the hearing, you’ll just take your documents to the hearing.

If you do disclose your documents before the hearing, you should write a list all the documents you want the tribunal to see eg the letters, emails and text messages the claimant was sent. You should also include any documents about compensation, such as proof of financial loss, or search for a new job. If a joint bundle of documents has been ordered or agreed with the other side, this list will form part of the overall index for the joint bundle of documents.

Hearing bundles

At the hearing the tribunal will need to have copies of the documents that the parties want to refer to. You should check what the tribunal has ordered — it will be either:-

That each side take their own set of documents (‘productions’) to the hearing
That a single bundle be prepared, including both claimant’s and respondent’s documents. The order will say who should prepare this.

Check the order to see what needs to be provided (it will be several copies of the bundle). Whether you need to prepare your own bundle or a joint bundle the documents should be paginated — page numbered — and bound in a ringbinder or tagged together.

Don’t include any documents relating to offers to settle the case. Solicitors often mark these “without prejudice”, but even if they aren’t marked this way, they are “privileged” — meaning neither side should refer to them during the hearing.

Organising the bundle

There is no standard format but it is common practice to set it out in the following order, with an index at the front.

Pleadings

The ET1 and ET3 (and any requests and replies for further information on these)
Any relevant tribunal orders (usually the only relevant orders will be those issued as a result of a Preliminary Hearing, where particular legal issues have been decided)
Any relevant documents produced as a result of tribunal orders such as chronologies or lists of issues
Discrimination questions and replies