Discovery and Disclosure are the legal terms for ordering a party to send the other relevant documents.  Each party is entitled to see the other side’s documents before the hearing, so they have a fair chance to prepare.  That’s the principle, but often doesn’t happen in practice.  Employers may only produce the key documents at the last minute, even during the hearing itself.  You will be in a much stronger position to protest about this at the hearing (by arguing it is unfair to you to produce the documents at this, late stage), if you have disclosed (sent your documents) to the employer in good time, as ordered. So don’t keep documents back yourself.  Send them all.

So you have to send your documents (pay slips, Bank statements, rotas, emails and texts about your hours or pay, Whats App messages  … whatever you have that is relevant) to the employer.  If it is 100 pages, copy and send 100 pages.  (Always keep a copy, so you know what has been sent.) 

Send the whole chain of messages, so that they can be read in context.  It is much harder for an employer to argue that you have been selective, and the message relied on by you is taken out of context, if you have supplied the context; or to argue that the message has been fabricated, if you have supplied the whole chain. If that makes it 200 pages, send 200 pages.

(if this is starting to sound to you as if we don’t trust the employer, you’re right.  Our experience is that employers who cheat you out of the National Minimum Wage are not trustworthy; they have lied to you, and may just as readily lie to the Tribunal.)

Disclosure by List.

The Tribunal may Order Disclosure by ordering you to send a List first :so you have to produce a detailed list of each document: date, who from and who to, and what is was about.  It is a lot of work, but you have to do it anyway, even if you are just ordered to send the documents.  If you don’t List them all, before you send them, you don’t have a record of what you sent; and can’t complain if the respondent doesn’t include them all in the Hearing Bundle (see Below.)

Getting the documents is usually at the heart of any case for wages or holidays.  It often takes a lot of time, so get on with it: start now!  

Sending the Documents: Send Digitally or on paper?

In a simple case, a claim for a week’s wages, digital may be fine.  Sending electronically is  easier, and is certainly quicker.  But in anything more complex, digital can be really difficult.  Can you send 100 pages from a mobile phone? If the respondent’s bundle is 200 pages and they send you that digitally, can you open the attachment?  Do you have Drop Box?  

It is often much better, at all stages to ask for and send (“Signed For” at a Post Office, so you have proof of delivery) paper copies.  If you have (or know someone who has) good laptop and good Word or Office skills, digital is easier; but for most people, paper copies are necessary.  The difficulty is making the copies off your mobile or device in the first place; and then making  a second set – one for you to keep!

In practice, you are going to have to get the documents copied (through a phone or copy shop, if you have to) onto paper for the hearing; and it is probably easier to do this early in the case: now, if you haven’t already done it.  It may cost you: £20, £50, or £100 at a copy shop…. But if your case is good, could win you thousands.

It is also much easier for you (and for us!) to analyse the documents on paper; and to identify the key documents so that you can present a clear argument to the Tribunal, showing the relevant pages that prove you were underpaid.  It is no good standing at the Tribunal hearing and saying: “It’s all on my phone”.  They won’t look at it.  Your case just got lost in the Cloud!

Analysing the Respondent’s Documents

In many cases, they will send you very little; and what there is, will often support their case.  The payslips, for example, will show that, for the hours worked each month, you were paid National Minimum Wage.