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 and that means what is contained in documents presented, and what is given by way of oral evidence at Tribunal by witnesses who can be cross-examined. Accordingly, it is important that you collect as much evidence to support your case as you can, while you can.
Compiling evidence for your case, for obvious reasons, is easier while you are still in employment. 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.
Top TipsGarvey Hanchard
Keep a detailed diary of events
Ensure there is a note of all meetings, or send an email summarising the meeting
Request relevant information from your employer
So, how do you know what will be useful evidence and what do you do with it?
Trust your gut
Firstly, trust your gut. 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 in every contract of employment of trust and confidence. That means that your employer must treat you in a manner that does not undermine you, make you feel that you cannot trust them to honour the terms and the spirit of your contract or 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 diary of events
Secondly, keep your own extensive records. You must be able to recall the sequence of events and being able to give evidence of events from records made at the time is much more compelling.
One classic 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.
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.
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 his being said, then send an email to confirm the conversation is 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, hopefully more.
Compiling evidence to present to your employer
You should try to build your case selectively, rationally and critically 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), when it’s set out 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’re 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.
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 stationary 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||01.12.17|
|B||Letter from Bloggs Ltd to Mrs Brown: Re: Withheld Bonus||0.7.12.17|
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, as 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 a 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 Monaco Solicitors can help
When we take on cases, 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.
Finally, you should take advice as soon as you suspect something is not quite right – don’t ignore the warning signs. 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 negotiation position with your employer. We 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 – every one of our lawyers is an experienced and senior employment solicitor. We know that clients want the situation to be over as soon as possible with the most attractive settlement amount. Learn more about about how we can make that happen and our transparent fee structure.