Evidence gathering in employment disputes: How to keep records (and win your case)

Often in employment tribunal claims, most of the evidence is in the hands of the employer and that gives them more power.

The tribunal can only make decisions on the evidence that is put before it. That evidence has to be contained in the documents presented to the tribunal and what is given by way of oral evidence at the tribunal by witnesses who can be cross-examined.

It’s therefore really important that you collect as much evidence to support your case as you can, while you can.

Compiling evidence for your case is easier while you are still in employment – for obvious reasons. It’s important to know how to keep records, and exactly what information it’s important to record.

If an employer is looking to bring an end to your employment, or make decisions about you that might be discriminatory and therefore not following employment laws that are in place to protect you, it is likely there will be some evidence of this; it is just a matter of finding it and exposing them.

How do you know what will be useful evidence and what do you do with it?

Trust your instincts

Firstly, trust your gut feeling or instincts. If you think that your employer is treating you in a way that makes you feel that there is something underhand happening then the likelihood is that you are right.

There is an implied term of trust and confidence in every contract of employment.

That means that your employer must treat you in a manner that does not undermine you. They should not make you feel that you cannot trust them to honour the terms and the spirit of your contract. They should not make you feel that you have no alternative but to leave.

Your employer is also under a duty not to make discriminatory decisions or treat you in this fashion.

Keep a record of events

Secondly, keep your own extensive records. You need to be able to recall the sequence of events, whether it’s to use in negotiations for a settlement agreement, or in an employment tribunal.

Being able to give evidence about events from records made at the time is much more compelling.

One classic way of recording issues at work that you’re unhappy about is to write them down on a daily basis, in much the same way as you would if you were keeping a diary. 

You can do this on paper or electronically.  You note what happened, who was involved, where it took place and the approximate time. 

Then you sign and date the record, and keep the log going for as long as you need to until either the problem is resolved and you stay with your employer, or until you leave your job.

How to record meetings

When you are called into meetings (such as a Without Prejudice meeting) make sure that what is said is recorded but that does not mean surreptitiously through your own device. The meeting may be recorded by the employer or HR. If your employer does not record the meetings and you have to rely on what is being said, then send an email beforehand to confirm that the conversation will be happening, and also after the meeting to confirm the main points that were covered.

Generally, only formal meetings are recorded but don’t forget your right to have a colleague or trade union present who can also take notes in any meeting.

Also, record the length of the meeting – it is often quite telling to a tribunal that a meeting that is said to have lasted only five minutes could have contained as much information as it is alleged to have in your employer’s notes.

Remember that the employer will be taking notes also, so you need to make sure that you have as much evidence of everything that happens as they do and hopefully more.

Compiling evidence to present to your employer

You should try to build your case selectively, rationally and critically from the moment when you begin negotiating with your employer.

You should also present the evidence that you have compiled by being selective, rational and critical when you are putting it together. 

If you fail to organise your evidence in a way that can be easily understood by whoever is going to read it, all the time and effort you have spent keeping records of events will have been wasted.

When you present it to your employer – under cover of a without prejudice letter – you want them to have no doubt about what happened. 

You also want them to understand that you are perfectly capable of putting together evidence that would stand up in an employment tribunal (if it ever came to that) and your ability to present your case clearly and coherently. 

When your employer reads your covering letter, they will need a way of checking out the evidence you have got to support the point you are making in the letter,

That means you need to provide them with a way of referring quickly and easily to the relevant page/paragraph in your evidence. 

In our experience, the best way of doing this is to put your evidence into a file like a lever arch one, and then use tabs and an index, as outlined below.

Firstly, arrange your documents in order – usually in date order, earliest to latest – then between each separate document place a file tab.  

Tabs can be bought from any stationery retailer and each tab will have a number or letter on it. Make sure you place the tabs in order from A – Z or 1 – 20 etc.

It’s best not to replicate email chains, so try to include one email chain as one document and then don’t add any part of that email chain again.

Once you have placed the tabs between each document, you can then create an index for the documents by using the following template example:

Tab No	Document Description	Date
A	Email from Mr Bloggs to Mrs Brown: Re: Bonus Payment	01.12.21
B	Letter from Bloggs Ltd to Mrs Brown: Re: Withheld Bonus	07.12.21

 

In your accompanying without prejudice letter, you can refer to the documents by using the tab numbers. This will make it easy for your employer to understand not only your case, but also the evidence supporting it.

Request supporting documentation from your employer

In cases of discrimination don’t be afraid to ask for the information that you hope to rely upon in supporting your case.

Send a request to your employer for documents or information that will support what you think is going on.

This is still worth doing even if you feel quite sure your employer will not provide the documentation. If your employer refuses to supply the documents or information, then you might be able to show that this is likely to be because they are hiding something.

To succeed in a claim for discrimination you have to prove facts from which an employment tribunal can infer some discrimination. That means a set of circumstances that your employer will either not be able to explain away or find it fairly difficult.

A claim for constructive unfair dismissal is one where the employee is entitled to resign, bringing the employment to an end in response to the unfair treatment by the employer.

But the conduct must amount to a fundamental breach of the employment contract. That means the treatment needs to be fairly serious (either one act or more normally a series of conduct) to amount to a fundamental breach.

Keep all of these factors in mind when collecting the evidence of your case. Even if you are unable to prove without a shadow of a doubt that your employer is in the wrong, we may be able to gather enough evidence to put you in a very strong negotiating position with your employer in regards to a settlement figure.

How specialist employment lawyers can help

When we take on cases at Monaco Solicitors, our first priority is to assess what evidence might be available to win your case and get you the most compensation.

If it is not readily available then we employ specific means of getting it from the employer, and that might include making a subject access request requiring them to provide all documents and records (including e-mails from specific computers) of which you might be the subject.

It is still surprising how much employers put in writing without realising that they may be forced to disclose copies for assessment by an objective source.

 

Next steps

You should take advice if you have tried informally, but not succeeded in sorting out, significant problems between you and your employer. Don’t ignore the warning signs!

At Monaco Solicitors, our specialist employment lawyers will help you to craft the best possible case based on the facts and get you the compensation you deserve. You don’t need to face your employer alone.

We know that clients want the situation to be over as soon as possible with the most attractive settlement amount. Learn more about how we can make that happen and our transparent fee structure.

The sooner we come on board, the easier it is for us to help you compile the evidence we know is needed to leverage a strong negotiating position with your employer. So get in touch to find out more about our services and no-obligation consultation:

• through our website here
• by email: communications@monacosolicitors.co.uk
• by phone: 020 7717 5259