Never say it’s never too late

A recent Employment Appeal Tribunal decision has acted as a reminder to parties of the need to make applications for specific disclosure in good time before a Tribunal hearing.

By Paul Quain

November 28, 2013
1 min read

In Jones v Standard Life Employee Services Ltd, a Claimant made an application for disclsoure of four categories of documents 12 days before the substantive Tribunal hearing was due to start. The Respondent employer submitted its objections to that application within two days, and five days later a letter was sent to both parties advising that an employment judge had declined to order the disclosure sought because the application had been made too late and it was not clear why the documents were relevant to the claim. The Claimant appealed (the first appeal).

Two days later, at 4.55pm on the Friday immediately before the Monday on which the Tribunal hearing was due to begin, the Claimant applied for a postponement of the final hearing to allow his appeal to the EAT to be heard. That was too late for an employment judge to consider the application, so the hearing began on Monday as listed. The Tribunal allowed the postponement application, but found that the Claimant had been at fault for leaving the application so late, so made an expenses order against him for £880. The Claimant appealed (the second appeal).

The EAT dismissed both appeals:

On the disclosure application appeal, the EAT found that the Claimant should have applied for the documents sought earlier as they related to allegations which formed a central part of his claim. The judge had been entitled to take into account the fact of a late application for documents adversely affecting the final hearing.
On the costs appeal, the EAT would not interfere with the tribunal’s conclusion that the adjournment was the Claimant’s fault unless it was shown that this conclusion was unjustified. An experienced solicitor must have anticipated that it would take some time to deal with the application, and yet it was only submitted 12 days before the hearing.

This case is a helpful reminder of the importance of thinking about what documents a party expects to receive on disclosure, and where these are not provided willingly, the importance of making an application for specific disclosure early on, otherwise that party risks applications for postponements/adjournments which may result in costs orders against them.