Preparing evidence for an employment tribunal in England and Wales
This advice applies to England and Wales only
This advice applies to England and Wales 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 ‘trial bundle’)
The tribunal’s powers to issue orders about evidence for a hearing are in the Employment Tribunals Rules of Procedure 2013 in rules
Rule 29 (Case management orders);
Rule 30 (Applications for case management orders); and
Rule 31 (Disclosure of documents and information)
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
- 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 is not done in every (or indeed 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 early or wait until disclosure has been carried out. Disclosure is the process by which the parties in a case show each other the documentary evidence they have about the case. The respondent should send you all relevant documents at this stage but sometimes you will need to ask them for specific documents that have not sent you as part of this process.
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.
What if the respondent doesn’t follow the tribunal’s orders?
If a respondent doesn’t follow the tribunal’s order you can raise this with them. A tribunal may impose various sanctions on a party who does not comply with an order, including:
- that they pay a costs or preparation time order or
- that the whole or part of their claim or response be struck out or
- making an ‘unless’ order
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
Document disclosure
Disclosure is when both sides show each other the documents that they have that they think are relevant to the case.
Check the case management order that the tribunal has made. It will explain how and when disclosure should be done. Try not to miss this date because it can make it difficult to follow the rest of the timetable.
The order will usually say that you need to send a list of the documents you have. This means you list all the documents you have, and attach a copy of any you think the respondent doesn’t already have. You might have letters and emails you’ve been sent, for example. You’ll need to include any documents about your compensation claim, so you’ll need to include any documents about your financial loss, or your search for a new job.
You need to send any documents you have that are relevant, even if they damage your claim. However you don’t need to include any information you’ve had from anyone giving you advice about your case.
When you get the respondent’s list you should ask them for copies of any documents on their list that you don’t already have. If you think something’s missing from their list, ask them to disclose it.
Trial bundles
At the hearing the tribunal will need to have copies of the documents that the parties want to rely on.
When the tribunal gives directions for the hearing it will give guidelines and a timetable for the preparation of the trial bundle. It will normally ask for 5 copies of the bundle to be given to the tribunal and that the bundle be paginated — page numbered — and bound in a file or tagged together. There will also be directions as to when the bundle must be delivered to the tribunal — some require it in advance, others on the morning of the hearing.
Top Tip
Make sure that you have any original documents kept safely and available if the tribunal need to see them eg keep them in plastic wallets
The number of pages may be restricted, say, to 250 pages to prevent the bundle becoming too big. If the page limit is reached you will need to get the tribunal’s permission to increase the size or risk the Judge refusing to read beyond that point.
What to include in the bundle
Usually the tribunal requires a single “agreed” bundle. This simply means that the parties agree what documents go into the bundle — not that the contents are agreed.
Sometimes there will be a dispute over what goes into the bundle. If you absolutely can’t reach an agreement on key documents then bring your own separate bundles with those pages and request that the employment tribunal view them separately. This should be avoided if at all possible.
Do not 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.
Witness statements
- Claimant’s witness statement
- Claimant’s witnesses
- Respondent’s witness statement
- Respondent’s witnesses
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
Employment documents — in chronological order
- Correspondence and emails
- Minutes of meetings
- Statements and other evidence taken in grievance hearing
- Discrimination diary
- Policies and procedures
- Contracts
Documents relating to compensation / remedy
- Schedule of loss and documents relevant to financial loss (eg job applications, payslips)
Example bundle index
Example completed bundle index
