One of the biggest changes to the workplace over the last twenty years has been the ever increasing number of digital communications that are generated.
It is now common for businesses to use emails, WhatsApp, text messaging and also instant messaging platforms like Slack and Messenger and even to record video calls made over Teams or Zoom.
An impact of this increase in digital communication is that when an employee presents a claim to an employment tribunal there is likely to be a much greater number of relevant “documents” than would have been the case in the pre-digital workplace. This is because, for the purposes of the parties’ disclosure obligations in an employment tribunal claim, a “document” is not limited to paper documents and would include anything on which information can be stored or recorded (so all of the examples listed above and many more).
The issue I and most employment solicitors will see time and time again are documents that have been created, often unnecessarily, which are detrimental to an employer’s prospects of successfully defending a claim. The current trend for remote working has exacerbated this issue further with the decreased use of face-to-face meetings or traditional voice calls which are not normally documented.
Common examples of the type of damaging communications I regularly see are:
- Emails which seem to suggest that a decision being made as part of a disciplinary hearing, grievance hearing or appeal hearing is being made by a person other than the person who chaired the relevant hearing.
- Emails which are another person giving advice that the employer would not want the employee to see (other than between an employer and their lawyer for the purpose of obtaining or giving legal advice). This can be advice given between colleagues or from external consultants who are not lawyers.
- Emails which show that decisions have been taken before an ongoing process has been completed e.g. a redundancy consultation exercise, a disciplinary process or a grievance process.
- Documents which are labelled “without prejudice” but, because they do not constitute statements made in a genuine attempt to settle an existing dispute, are not actually within the scope of the without prejudice rule.
One of the impacts of the increased creation of “documents” by employers is the increase in employees making tactical data subject access requests to either “fish” for documents that might support a claim or simply to be a nuisance and tie up their employer’s resources.
My advice to employers would be to train their employees on data protection issues but also to think carefully whether creating an electronic record is likely to be beneficial or not.
For more information or advice on this or any other Employment Law & HR issue, please get in touch with James Symons on 0115 9 100 250, or send him an email.
Posted on August 2, 2024
