Using evidence in your settlement agreement negotiation
All legal cases stand or fall on the quality or quantity of the evidence that is presented either before the court or between the parties. The same is true in a settlement agreement negotiation between employee and employer.
If you want to negotiate with your employer, then you must gather and present evidence to them in the same selective, rational and critical manner as a lawyer would do. Remember, companies employ lawyers in-house or engage private commercial law firms to handle their legal work. The chances are that your ‘without prejudice’ letter will be passed to a lawyer, so you have to be able to argue the facts and the consequences that flow from those facts, in a manner which a lawyer both understands and respects. If a lawyer cannot understand the points you are making, or cannot see how the evidence ties together to support those points, then it will inevitably affect your ability to achieve what you want in terms of a settlement agreement.
This article discusses the methods used to gather evidence and thereafter present that evidence to an employer in a manner which is clear, concise and supportive of your case. We will look at the common forms of evidence in an employment law case, how to gather that evidence, why sometimes gathering evidence can lead to unintended consequences, how to garner witness evidence and then how to present that evidence to your employer alongside a ‘without prejudice’ letter, a topic which is discussed further in chapter 6 part 1 on Negotiation.
Deciding what evidence will support your case
Before embarking upon an exercise to gather evidence to support your case, you must determine what your potential claims are and where the evidence is likely to be found to support these claims. The possible claims you may have are discussed elsewhere, but now it’s time for you to decide which areas of employment law you are affected by.
It’s vital to undertake this evaluation before starting to gather evidence, as the type of claim you may have against your employer will largely determine the sort of evidence that you need to gather. For example, if you believe you are being sexually harassed by a colleague at work, there is no point in asking for a copy of your contract or searching through e-mails if the harassment is taking place verbally.
Likewise, if you believe that you are being unfairly dismissed for an incident on the factory floor witnessed by two colleagues, then a trawl of your e-mails from years ago is not going to support your case. Whereas, if you believe that you are not being paid equally when compared to a colleague of the opposite sex, you need to be asking your employer directly for information about your colleague’s pay.
Critically and carefully select your evidence
It is tempting for some employees to trawl through as much potential evidence as possible in an attempt to make some of it support a potential claim: this is not generally recommended, as undertaking this sort of exercise can often lead to weak and unsubstantiated allegations which will not help you to achieve what you want.
For example, lots of unrelated incidents over several years are unlikely to be sufficient to establish a case of constructive dismissal; nor is the fact that your manager made a pass at you at the Christmas party two years ago going to help you establish a case of unfair dismissal if you are accused of negligence in performing your duties.
If you simply amass as much evidence as you can and then accuse your employer of anything you can think of in a “throw as much mud as possible and see what sticks” approach, this is not only going to fail to get you what you want, it may actually prove counter-productive and lead to your employer taking action against you.
Evidence should support your strongest arguments
By far the better approach is to focus your evidence on the main argument you have. For example, if you believe that you have been constructively dismissed because of a breach of trust and confidence, search for evidence over the last six months that will support the three or four incidences that you believe are the strongest. A tight and focussed approach will always be more effective in a negotiation than wide-ranging allegations.
Remember, although this article is written to enable you, as an employee, to negotiate a settlement agreement, you are actually gathering evidence that could be used in an Employment Tribunal or civil court. Therefore the evidence you obtain must directly support your case if it comes to it being used in an Employment Tribunal. In addition, your employers are much more likely to take your negotiation seriously if you can provide them with evidence that a) supports your case and b) could be used against them in an Employment Tribunal, as it presents a risk to your employers in terms of compensation, legal costs and their reputation.
Keeping an events diary
One “oldie, but goodie” way of keeping a record of ongoing events is by keeping an events diary. To do this simply record the events that you wish to complain about in work whenever they occur, then sign and date the record, either electronically or physically.
It used to be the case that employers at Employment Tribunals used to dispute the truth or dates of events diaries, but as modern software can date-stamp, employees can now prove that they recorded certain events on a certain day.
Presenting evidence to your employer
As we mentioned at the start of this article, you must try to build your case like a lawyer would when you start the process of negotiation. This also extends to how you would present the evidence that you have gathered. There’s no point in spending days or weeks gathering evidence only to present it to your employer, accompanied by a without prejudice letter, but presented in a chaotic and disorganised way.
You will need to refer to any evidence you have gathered in your without prejudice letter. So you must figure out a method of identifying the evidence that you have disclosed in your letter so that your employer can easily refer to that evidence when they are reading your letter. The best way of doing this is to put your evidence into a file like a lever arch one, and then using tabs and an index, as outlined below.
The way to do this is to arrange your documents in order, usually in date order, earliest to latest, then place a file tab between each separate document. You can buy file tabs from any stationary store for a few pence. Each tab will have a number or letter on it so make sure you place the tabs in order from A – Z or 1 – 20 etc.
It’s best not to replicate e-mail chains, so try to include one e-mail chain as one document and then don’t add any part of that e-mail 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||01.12.17|
|B||Letter from Bloggs Ltd to Mrs Brown: Re: Withheld Bonus||0.7.12.17|
In your “without prejudice” letter, you can refer to the documents by using the tab numbers. This will make it very easy for your employer to understand not only your case, but also the evidence supporting it.