One of the most important documents is the Respondent’s response form, ET3. The first step is to check your file of documents and consider what other documents or additional information might prove useful.
Try to imagine what documents the Respondent might have that would be relevant to your case. These might include:
- policies and procedures
- minutes of meetings
- your recruitment or your personnel file if you are an employee;
- copies of documents relating to specific events such as any disciplinary proceedings taken against you, or any details of promotion applications made by you, for example; or
- any other documents that relate to the case
You can write to the Respondent listing all the specific documents you consider relevant to your claim. This letter can be referred to as a Notice for Discovery
The Respondent has a duty to disclose documents that are relevant to the issues in dispute in the case.
What if the Respondent doesn´t give me the documents I seek?
If the Respondent does not provide the documents you seek then you are entitled to apply for an ‘Order for Discovery’ (the Order) from the tribunal. Before seeking the Order, write to remind the Respondent that it has failed to provide the documentation and that if they do not do so within a specified period you will seek an Order from the tribunal.
If the Respondent still doesn’t provide the documents then write to the tribunal requesting a hearing at which your request for an Order for Discovery
will he heard and decided.
The tribunal normally won't make an order if they think you're asking for too much, or your questions aren't relevant to the case. Remember, you can only ask for information that gives evidence to support your case, or against the Respondent’s case.
The Respondent can use the same procedure to ask you for information and documents. It’s important that you carry out this request, particularly if the tribunal makes an order.
Tribunal directions or orders are instructions about what should happen in the case, to make sure things are happening properly and on time. For example, there might be directions about deadlines for when you and the Respondent have to send each other witness statements or other documents. Treat directions and orders from the tribunal seriously as there may be problems if you don't do what's instructed.
You can gather more information or detail about the Respondent’s case in ways other than seeking documents. Do not become overly concerned about which procedure to use as the tribunal is a less formal system and the choice of acquiring information will not be fatal to your claim. Each of these processes can be commenced by you without the need to obtain permission from the tribunal.
There are two ways this can be done:
1. Questionnaire Procedure
You can ask written questions about the treatment you endured and their policies and practices that might be relevant to how you feel you were discriminated against. This process is referred to as a Statutory Questionnaire procedure. This questionnaire is sent to the Respondent within 21 days of the receipt of your claim to the Tribunal. The answers provided by the Respondent are admissible in evidence at a hearing before the Tribunal.
For example, where the claim relates to recruitment and selection, you would commonly look for details about the:
- composition of the panel;
- equality training the panel had undergone;
- shortlisting criteria;
- interview notes and questions, including details of the successful candidates.
You could include a request for documents and although the Respondent is not obliged to comply very often they do. A reasonable period for reply is 8 weeks.
An advantage of the Questionnaire procedure, is if the Respondent fails to answer a question or questions then the tribunal can draw adverse, or negative, conclusions about the Respondent’s case. The Commission has produced 'Frequently Asked Questions' on the Questions Procedure.
2. Notice for Additional Information (sometimes called a Notice for Further and Better Particulars)
You can seek additional information from the Respondent and they can also seek additional information from you. To start this process write to the Respondent asking for further details about certain specified matters. Ensure that the information you request is relevant and specific to your claim as the Respondent could claim the request is too vague.
The "particulars" of your case are the details of the discrimination claim that you are making and other relevant information, including:
- the nature and amount of your loss;
- when and how the discrimination happened;
- which of the Respondent’s employees were involved, etc.
If either party does not furnish the requested information both may seek an Order for Additional Information
from the tribunal. On occasions, a tribunal will provide a party with a second opportunity to comply. However failure to comply with a Tribunal order could result in a claim being struck out, meaning you would not be allowed to pursue your case. Link to ‘Letter from Claimant to OITFET Seeking Order for Additional Information’
The other sanction for failing to comply is to award the costs associated with the order against the defaulting party.