Workers’ compensation claims and sensitive or embarrassing employers’ records

Employers in the ACT facing a workers’ compensation claim from one of their employees should be continually aware that sensitive records may end up in the hands of the worker if his/her claim becomes litigated.

If an employee is injured at work they may be entitled to make a claim for compensation. Such claims are usually administered without incident by the employer’s workers’ compensation insurer. Occasionally, however, the matter can become disputed and result in legal proceedings. If this occurs, court processes may force an employer to give the worker all documents relevant to the worker and their claim for compensation, even if the employer considers the documents to be sensitive, embarrassing or confidential.

When does an employer need to disclose records?

There are two court processes that can force an employer to disclose their records to a worker making a claim for compensation: discovery and subpoenas. Discovery is a process where each side gives copies of all documents relevant to the dispute to the other. In effect it is “showing your hand”, and is intended to reduce costs and even the need to go to court if the documents show that one side will clearly succeed over the other.

A subpoena is a written court order that can compel the receiving party to produce relevant documents. Unlike discovery, subpoenas need to be specific about the kinds of documents that need to be produced.

What records need to be disclosed?

This will depend on the exact circumstances, but an employer should expect that they will need to produce all of their records that relate to both the worker’s employment and their claim for compensation. Naturally, this covers a large variety of documents, including the workers’ complete file and pay records, incident reports, training materials and all written communication that relate to that worker. This can cause difficulty where some of the material is sensitive or confidential. It is particularly the case where there have been performance or interpersonal issues in the workplace.

Some examples of documents that employers can be reluctant to produce are:

• chains of emails between board/committee members and/or executives that comment on the worker in a less than professional manner;
• statements obtained from other employees who do not want their statement being shared;
• internal investigation reports; and
• meeting minutes documenting how personal or sensitive issues of other employees play a part of the worker’s performance or compensation claim.

All emails, whether to or from the worker or otherwise, will also need to be produced if they relate to the worker or their claim for compensation. It does not matter if an email is sent to or from a personal email address. If it is connected with the worker’s employment, that is sufficient to require its disclosure.

Are there exceptions to disclosure?

Yes. Documents that are protected by legal professional privilege are not required to be produced to the other party. Legal professional privilege covers any document produced as a result of obtaining legal advice or in preparing for litigation.

However, the decision about whether a document is privileged or not will be made by the solicitors acting for the workers’ compensation insurer and not the employer.

What can be done to minimise the damage?

The first line of defence in having to produce potentially embarrassing documents is to minimise their creation in the first place. We recommend the following strategies, which apply regardless of whether an employer is currently faced with discovery or a subpoena.

• Always focus on professionalism in dealings with employees, and ensure sensitive issues for different employees are dealt with separately.
• Keep accurate and comprehensive records about employees, particularly those that may have performance or interpersonal issues mixed into a possible workers’ compensation claim. While it may be tempting to only minimally document in fear of having something sensitive produced to the worker later, this ignores the benefits of good documentation. Good records, when produced, can greatly assist your insurer and may even be damaging to the worker’s claim. Some examples of invaluable records that employers have kept in the past are:
  • a reliable record of performance or interpersonal relationship incidents at work;
  • a robust record of employee training; and
  • records that document the steps the employer took before allowing an injured worker back to work.

Litigated workers compensation claims can be costly and have the potential to cause significant reputation and relationship damage to employers. We therefore recommend that employers consider the above strategies and if necessary, seek further information from their workers’ compensation insurer or an experienced firm of insurance litigation solicitors, such as Hall & Wilcox.