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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Hope someone can help please. QUESTION ABOUT WITHHOLDING DOCUMENTS

Resolved Question:

Hope someone can help please. QUESTION ABOUT WITHHOLDING DOCUMENTS I AM REQUESTING FOR EMPLOYMENT TRIBUNAL HEARING (2 questions below). I am a claimant at an employment tribunal. The respondent has refused to provide some documents such as minutes for board meetings where I believe restructuring and redundancies were discussed. I sought a disclosure order from the tribunal but the judge seemed to believe the respondent's claim that 1) the board did not discuss the restructuring and redundancies and 2) there were no board minutes taken in any case. I do not believe this. The judge directed that the respondent had disclosed everything they needed to. I subsequently discovered in one of their witness statements that the redundancies WERE discussed at the board because this is mentioned in their evidence. I also believe there would certainly have been minutes, if not contemporaneous notes from one or more of the attendees. QUESTION 1: Is the company in contempt of court if it is not telling the truth about the presence and content of minutes/notes from these meetings. QUESTION 2: What should I do to try and address it with the tribunal (I have already raised my concerns with the company)? Thank You.
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Do you have proof that these documents actually exist?

Customer:

Hello Ben.

Customer:

Hello Ben. I do not have definitive proof that there are 1) formal minutes of all board meetings or 2) any contemporaneous notes of such meetings. However, I have been provided with minutes of a previous board meeting and I know that my ex-line manager (the managing director) was a prolific taker of handwritten notes, so he at least would have something handwritten (several sets of his notes are already in the tribunal bundle). That said, I was also the executive officer of a subsidiary company of the respondent for two years and there was never a situation when a set of sufficiently complete and accurate minutes was not required. It is rather neglectful not to take any kind of record of what was discussed or agreed, including actions. I am looking to see if I have a copy of the board Terms of Reference which would set out whether such minutes were a formal requirement. Board terms of reference usually would say something like "1) every meeting shall be minuted and 2) draft minutes of the preceding meeting(s) shall be circulated to all Board members ahead of each Scheduled Meeting". In the meantime, this is what I said in my most recent communication with the respondent (I have removed the names of the company and individuals): ... "I have previously requested copies of minutes and contemporaneous notes of the Respondent's board meetings covering the full duration of the redundancy process and my notice period. You set out a detailed analysis of your position in your letter to the tribunal on 7 February 2014 as follows: 'The Respondent [company name] is a subsidiary of [parent company name]. The Respondent's Board meets formally to deal with statutory matters such as the signing of the annual accounts, the appointment of directors and so forth. These meetings are formally minuted. There are approximately one or two such meetings per year. The Board also meets as more of a "management or operational board" approximately every two months to discuss operational matters such as key performance indicators, sales, revenues, clients, financial reporting and health and safety etc. There are occasionally board presentations on relevant issues. These management meetings are always not formally minuted, although notes or action points are generally taken. These meetings would not address matters such as appointment issues, redundancy or staffing issues, typically because the meetings are usually attended by some of the Respondent's managers and it would be inappropriate to have a discussion of such matters before that audience. When the issues of the Respondent addressing its financial losses and a proposal for a reduction in staffing levels arose (including the potential redundancy situation which eventually lead to the Claimant's dismissal) [person's name] discussed these matters directly with [person's name] (Chief Operating Officer of the [company name]). We have previously provided the Claimant with copies of [person's name] handwritten notes recording his meetings with [person's name]. In addition, we have previously provided the Claimant with a copy of the Respondent's Board minutes of 14 November 2012 (although there is no mention of the potential redundancy situation relating to the Claimant so we do not believe that these minutes are relevant to this case). We have also previously provided the Claimant with a copy of [person's name] presentation to the Respondent's Board on 12 February 2013. No minutes or notes were taken of the 12 February meeting.' ... I am not at all persuaded by your assertions regarding the structure of board meetings, the absence of minutes or any other notes of the majority of these meetings, or the absence of minutes or any contemporaneous notes from the meeting on 12 February 2013. I worked for the Respondent for over three years and was the executive officer of one the Respondent's subsidiary companies for approximately two years. In this respect, I was surprised to see that [person's name] principal witness statement also states: 'On 12 February 2013 the Respondent's business situation and the agreed business plan were discussed by the Respondent's Board, comprising [person's name] as Chairman, [person's name], and myself, with the [parent company name] Finance Director, [person's name] attending as a guest. The actions underway, including the notifications given to those at risk, were mentioned.' This statement by [person's name] directly contradicts what you claimed in your letter to the tribunal on 7 February 2014 regarding the board meetings. I therefore repeat my request, set out in my request to the tribunal on 6 January 2013 for a disclosure order, that you provide me with: "Copies of Board Minutes of the respondent and the [parent company name] parent company. This should include any minutes which relate or refer to the restructuring and my selection for redundancy, including the use of selection criteria, the drawing of the redundancy “pool” , my performance generally, interviews and scoring, the redundancy decision, my redundancy appeal, consideration of suitable alternative employment, events during my notice period including handover and exit arrangements, my dismissal, and my subject access request' ". If you do not provide this information by return I will seek a further disclosure order from the tribunal to ensure that you do so". That is where things have got to so far Ben. It is clear they have contradicted themselves about whether the redundancy process was discussed at the 12 February 2013 board meeting. I suspect their statement to the tribunal was a lie. Assuming I am correct and they are also lying about the minutes and withholding them, would this be a contempt of court? Can I just double-check that our communications are private and confidential please? Thank you.

Ben Jones :

Hi, this is a public forum as per our terms, it can eventually be locked for privacy once we have finished. Would you like to proceed?

Customer:

Yes please

Ben Jones :

ok will have to deal with this first thing tomorrow please as am just going offline for the evening, thanks

Customer:

That's fine - good night

Ben Jones :

Thank you and to you too

Ben Jones :

Thanks for your patience. In a tribunal claim both parties have a duty to disclose all those documents which are in their possession and are relevant to the issues at hand, regardless of whether they assist their case or are detrimental to it. It is not possible to be selective and only provide those documents which help your case and anything relevant must be disclosed.


 


If you know or believe that there are specific documents in the possession of the other party here there is the potential for the employment tribunal to order specific disclosure. However, the tribunal could consider your application and its merits and hear the other side’s response and decide that here is no need for a specific disclosure order in the circumstances.


 


Unless you have direct evidence that shows these documents exist, all you can realistically do is ask for a review of the Judge’s order and ask the tribunal to reconsider your request. Pursuing a contempt of court matter would be highly unlikely unless you have the required proof that they have lied in court. Factual inconsistencies are not uncommon and can happen all the time, but contempt of court is a serious matter and would not be taXXXXX XXXXXghtly – there must be direct proof and circumstantial evidence would not really be considered.


 


So at this stage you can only ask for a review of the ET’s decision.

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?

Customer:

Thanks Ben. I'm just reflecting on what you said before confirming or asking for further clarification.

Ben Jones :

No problem, thank you. If you can eventually let me know either way that would be great so I know whether to close the question. Thanks

Customer:

Yes, will do.

Ben Jones :

Thanks

Customer:

Hi Ben. I have now accessed the company's articles of association from Companies House. These were last updated in 2008. I have also spoken to Companies House about how the various regulations apply according to this date. While the company's own articles are silent on the matter of the taking of minutes, the articles also refer explicitly to Table A of the Companies Act which sets out regulations for the management of a company limited by shares. The company's own articles state that the regulations in Table A shall apply except where they are excluded. The following regulation in Table A - regulation 100 is NOT excluded and consequently, it should apply. Table A - Regulation 100 states ... "MINUTES - 100 - The directors shall cause minutes to be made in books kept for the purpose- (a) of all appointments of officers made by the directors; and (b) of all proceedings at meetings of the company, of the holders of any class of shares in the company, and of the directors, and of committees of directors, including the names of the directors present at each such meeting." I have spoken to Companies House and they have confirmed my interpretation should be correct in that, because Regulation 100 in Table A applies to the company, there is a responsibility to make and keep minutes of meetings of the directors. This is completely consistent with my expectations of what would happen given my knowledge of the company in question. There would not seem to be an option, under the articles of association and the way they work in relation to Table A, for the company not to take minutes of all proceedings at any meeting of the the directors. I think this should form the basis for me to approach the other party and the tribunal saying this should be sufficient "proof" that minutes which I believe to exist should exist. Do you have any further advice on this please? Thank you.

Ben Jones :

What the company should do, is not proof that it has done so...It is a suggestion that this is what would have been expected of them, but that does not mean that they definitely did take the minutes in question. So whilst this is certainly an argument that you can raise, it still does not provide 100% proof that such notes were taken and that the employer is withholding them

Customer:

Thank you Ben. I am expecting a response back on this issue shortly as per my detailed explanation above at 11:16 PM yesterday. May I leave things open with you until I hear back just in case there is a further question based on their reply please?

Ben Jones :

Yes I am happy to answer follow up queries as needed. The question won't close either way so if you would kindly leave a rating for the advice so far, that would save you getting all sorts of nuisance emails asking for it in the next few days but as mentioned you can still get back to me after that if necessary. Thanks

Customer:

Hi Ben. Thanks for your help. The other party has asked for an extension so I will not see what they have to say for a few days. Hope I can pick this up with you then when I hear back. In the meantime, I'm happy to leave you feedback as requested. Thank you.

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