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How to gather information from the Respondent

In this section, the focus is on getting documents and other information from the Respondent that relate to your case. It will help you in the process of gathering information if you understand what you need to prove to the Tribunal. The documentation and additional information that you request from the Respondent will be intended to support your claim of discrimination.

What documents do I have?

Gather together the documents already in your possession. Having examined those documents, consider what other documents or, additional information you need or, would find useful. Obtaining this information is the focus of this section.

What sorts of documents 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,
protocols,
letters,
memos,
emails,
minutes of meetings, or
any other documents that relate to the case.

The Respondent has a duty to disclose documents that are relevant to the issues in dispute in the case and if you examine the sample Notice for Discovery you will notice that it in effect reminds the Respondent that it must disclose all relevant documents. You should, however, try to list the specific documents that you know, or believe, to exist and which are relevant to your claim to ensure that the Respondent looks for specific documents.

Equally you should be aware that you cannot engage in what lawyers usually call a ‘fishing expedition’, trawling around for documentary material in the hope that you will find something that supports your claim.

You can also seek copies of other relevant documentation such as:

equality, anti-discrimination and/or anti-harassment policies,
the nature and type of anti-discrimination training given to staff, and
which staff members undertook this training and so on.

You can also seek copies of material relating to:

your recruitment or your personnel file if you are an employee, or
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.

How do I get further documents from the Respondent?

You can simply write to the Respondent seeking all documentation which you consider are relevant to your discrimination claim. This letter can be referred to as a Notice for Discovery. You may view a sample letter seeking such documentation here.

What if the Respondent doesn´t give me the documents I seek?

Where the Respondent does not provide the documents you seek then you are entitled to apply for an Order for Discovery 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 that 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. Let’s say in Phillip’s case that he sought the personnel files, appraisals and assessments of other work colleagues who were not dismissed as he was but XYZ Ltd has refused to provide them. He could then write to the Tribunal to seek an Order for Discovery.

How do I gather more detail about the Respondent´s case?

You can gather more information or detail about the Respondent’s case in other ways other than seeking documents. There are two ways this can be done that will be examined here:

Notice for Additional Information (sometimes called a Notice for Further and Better Particulars)
Questionnaire Procedure

Each of these processes can be commenced by you without the need to obtain the permission of the Tribunal. If, however, no reply is forthcoming (or an inadequate reply is made) to your Notice for Additional Information you can obtain an order from the Tribunal requiring the Respondent to comply with them. Such orders can be obtained in a CMD.

There can be some degree of overlap between these procedures and the difference between them might be blurred. Don’t become overly concerned about which is the correct procedure to use. Remember that the Tribunal system is designed to be a less formal system for handling employment-based complaints than the courts and choosing a less suitable procedure to acquire information will not be fatal to your application.

Notice for additional information

You can seek additional information on the Respondent’s defence - and indeed it can seek additional information on your own claim - by writing to the Respondent asking it to provide further detail about certain specified matters. This is sometimes referred to as a Notice for Further and Better Particulars or (more properly) a Notice for Additional Information.

The "particulars" of your case are the details of the discrimination allegations that you are making, including:

the nature and amount of your loss,
when and how the discrimination happened,
which of the Respondent’s employees were involved etc.

You may have given much of this detail already in your ET1 claim form but the Respondent may ask for further details from you about specific matters. Equally, you are entitled to seek further particulars of the Respondent’s response to your claim. Each individual request for information must be as detailed and as specific as possible otherwise there is a danger that the Respondent claims that it cannot compile the information you seek because the request is to vague. Review your list therefore before transmitting it and ensure that it is as specific as possible.

In Phillip’s case he would be interested in receiving details about the production targets that are at the heart of his case. A sample letter to the Respondent requesting Additional Information in Phillip’s case is available by clicking here.

If the Respondent does not furnish you with the particulars requested you may seek an order from the Tribunal requiring it to produce the details that you requested. Thus, in Mary’s case she might seek such an order where ABC Ltd does not answer her letter requesting additional information. If it further fails to comply with these orders, then its response may be struck out.

Of course, if you fail to comply with an order to make further details of your case available then there is a chance that your claim will be struck out.

Sometimes, before a Tribunal takes that step it may give the party in default a second opportunity to comply with the order. This is sometimes referred to as an ‘Unless Order’ because the claim, or response as the case may be, will be struck out unless the order is complied with. The other sanction for failing to comply is to award the costs associated with the order against the defaulting party.

Questionnaire procedure

You are allowed to ask written questions of the Respondent within 3 months of the last incident of discrimination or within 21 days of lodging your ET1. This is an opportunity to probe the Respondent about your case and its employment equality practices generally.

The form to be used is set out in statute and contains certain prescribed questions but you can add to those. These forms can be obtained from the Equality Commission as part of the ‘Discrimination Complaints Pack,´ which also includes a list of sample additional questions that can be asked of the Respondent.

The Commission has also published a Frequently Asked Questions (FAQ) Sheet with regard to the Questionnaire Procedure which you may find useful. Click here to access this document.

The sample questions included within the pack relate to the following types of cases:

Recruitment and selection
Dismissal
Redundancy
Harassment
Victimisation
Reasonable adjustment (disability cases only)
Pregnancy/maternity (sex discrimination only)
Equal pay
Retirement (age discrimination only)

The questions posed in the Commission’s sample questionnaire are simply for guidance and you are not obliged to follow them. In fact, you should consider to what extent they should be added to, or modified, by you to suit your own circumstances. Add any additional questions – including the Commission’s sample questions - on separate sheets making reference to them in the relevant paragraph of the Questionnaire.

For example, where the claim relates to recruitment and selection, as in Mary’s Case, you would commonly look for details about:

the composition of the panel,
the equality training the panel had undergone,
the shortlisting criteria,
the interview notes and questions,
as well as the 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.

Keep a copy of the Questionnaire that is sent and send an accompanying cover letter. You should seek a reply within a reasonable period, such as 8 weeks.

The particular advantage of the Questionnaire Procedure - aside from obtaining more relevant information about your case - is that if the Respondent fails to answer a question or questions then the Tribunal can draw adverse, or negative, conclusions about the Respondent’s case. In other words, failing to answer some or all of the questions is a dangerous approach by the Respondent.

Consequently, most Respondents will provide answers to the questions posed. As a result, it may equally be as important how the Respondent answers the questions and you may need to scrutinise the answers critically.