A multitude of employment law issues came before the Isle of Man Employment & Equality Tribunal recently in a pre-hearing review of an unfair dismissal and disability discrimination complaint brought by an individual against a Manx retail sector employer.

A Tribunal can call a pre-hearing review where there are outstanding matters that need dealing with before the main hearing. In this case, the complainant alleged inadequate disclosure of material documents had been made amongst the five co-respondents to the complaint and requested further detail of the relationship between the employer and two off island HR sector entities, being material to whether they were acting as agent for the employer. In turn, the Tribunal also looked at whether legal advice privilege and/or litigation privilege might cover some key documents held by respondents.

After hearing submissions, the Tribunal chair made what is known as an “unless order”, fairly uncommon in Tribunals, the purpose of which is to require compliance with the order within a fixed time failing which the defaulting party’s case is struck out. The Tribunal was satisfied material disclosure needed to be made including documentation prepared by an HR agency as to investigations into matters relevant to the complaint. The Tribunal also ordered disclosure of the process adopted for conducting the searches for such material documentation and verification of disclosure by affidavit.

The chair was content that documents in connection with an HR investigation were not privileged from production as their dominant purpose was not the complainant’s Tribunal litigation but more to do with investigations into general staff discontent. Additionally, the Tribunal was satisfied the status of the two HR entities in the context of the complainant’s case should be explained particularly relating to investigative work they had carried out.

The Tribunal declined to make a costs order against any of the respondents but gave liberty to apply as to costs following the end of the disclosure process.

This interlocutory judgment shows that the Tribunal can bare its teeth on such matters when appropriate. Document disclosure in the Tribunal generally follows the principles set out in the High Court Rules but with Tribunal procedure tending to be more user friendly than High Court process, parties can sometimes be too relaxed when it comes to disclosure. It is a timely reminder as to the important duty of all litigants whether in Court or Tribunal to preserve, check and disclose all relevant and disclosable documents.

Advocate John Aycock is head of M&P Legal’s employment team with 35 years’ experience of labour law in three jurisdictions. Note this article is not legal advice, specific advice should always be taken on each case.

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