Be prepared to disclose electronic data in bullying and harassment disputes
By now it would be hoped that most employers are up to speed with their legal obligations in tackling stress and harassment in the workplace - that they as a minimum have specific policies in place and communicate these to the workforce. But as hard copies are replaced by soft copies and email banter replaces gossip, employers are faced with the daunting task of compiling and disclosing electronic data during workplace investigations.
In bullying and harassment claims the lawyers on both sides will look for evidence that can corroborate who is telling the truth as bullying is most often denied by the accused. The investigation process involves disclosure of documents which to date has predominantly been hard copy material.
As more documents are created, exchanged and stored electronically, the obligation to disclose such material has become more relevant. But in contrast to the traditional hard copy documents, the volume of electronic material is enormous - with emails as the main culprit. Since people often say things in an email that they would never have dreamt of saying in a letter or a formal note, proof of harassment and bullying can often be detected in the ‘Deleted Items' of the accused. What many don't realise is that even deleted emails can be restored and a guiding thought to anyone writing an email should be ‘would I be embarrassed if this email were to be made public'.
While electronic disclosure has so far been widely ignored, the courts have made it clear that solicitors would be grossly incompetent if they ignored it. Disclosure of electronic documents is not optional but a crucial element of the litigation process. Employers will increasingly be asked to provide information about the business's categories of Electronically Stored Information (ESI), and the devices upon which they are held - perhaps even which storage systems and documentation retention policies in place. To streamline this process, an e-disclosure questionnaire has been drafted with the intention being that the person who signs it will have to attend any court hearing involving electronic disclosure.
For employers, organising and storing data in a searchable form could prove incredibly cost effective given the amount of information that could be requested during litigation. Indeed the Jackson Report, which discussed the thorny issue of litigation costs, estimated the cost of electronic disclosure for a small case at a staggering £62,000. Of course, there is no requirement to leave no stone unturned, and the courts should expect the cost of investigating stress and harassment claims to be proportional.
In the case, though, of Goodale vs Ministry of Justice the damages likely to be awarded were modest but the argument of proportionality was surprisingly not accepted by the judge despite speculation that a crude search would produce at least a few hundred thousand documents. In handing down his decision, the judge highlighted the issues surrounding disclosure of electronic documents but left employers worried when he failed to acknowledge that the manpower required to trawl through gigabytes of data was out of proportion with the size of any potential compensation.
As the courts take an interest in the issue of e-disclosure and become familiar with the software available to assist in the process, the message for those working in an HR environment is to ensure they have a basic knowledge of the company's IT systems and procedures. It is more than likely that they will find themselves working more closely with the ‘IT Crowd' in dealing with an ever-increasing request for electronic disclosure in the hunt for the workplace bully. In my experience, the smoking gun is often to be found in that ever-growing ‘Sent Items' folder and desktop ‘Recycle Bin'.
Roddy Macleod is a partner at law firm Weightmans LLP