Collecting evidence for Tribunal: what can I use, and what should I watch out for?
Content / trigger warning
Good evidence is the backbone of your Employment Tribunal claim, so it’s important to get the most out of all the evidence you can use. In this guide, we’ll talk you through where to look for the evidence you need, what mistakes you could make and what you should be careful using at Tribunal.
How to collect evidence for Employment Tribunal
There are a few different ways in which you can gather evidence.
- Go through your own inbox or email folders, WhatsApp messages, Slack messages, and any other correspondence you can access.
- Gather together any documents you have saved or kept in hard copy.
- Look on the company systems such as the intranet.
- If you’ve no longer got access to your emails or the company systems, make a formal request for specific documents you need, by writing to HR or someone senior within the organisation.
- Make a DSAR - this can be a really useful tool for getting your employer to give you documents, as they are legally required to respond. However, they are legally allowed 1-3 months, or potentially even longer, to get back to you.
- If appropriate, ask colleagues who you think might have relevant documents that they can give you.
- Put together a timeline of what’s happened to you. You can do this using the ‘My Story’ page on the Valla platform.
Common mistakes to look out for
When you’re gathering evidence, be careful that you don’t do anything that could prejudice your case or get you into difficulties.
Here are a few common things to look out for.
Only include what’s relevant
When you’re gathering evidence, it can be tempting to go back over several months or years and find every single document that relates to issues you’ve had at work.
However, it’s unlikely to be helpful to dredge up issues from the past. If you have been dismissed and are arguing this was unfair, it’s unlikely to be relevant to rely on evidence from years before this happened. On the other hand, a meeting note from 6 months ago may be relevant if you are claiming for harassment that you are saying has continued since then.
Imagine you’re the Judge having to read through the documentation. You want to show them everything you can to support your case, without them getting distracted by irrelevant documents.
If you’re planning to email information to your personal email account, be careful about this, as it may be against company policy. Be particularly careful with sensitive information - for example, commercial information about the company that isn’t publicly available.
If you’ve already left your job, this is less of a concern, as your employer won’t be able to use it as a reason to dismiss you.
Think about whether or not you want your employer to be aware that you are collecting information.
If you’re looking to put pressure on your employer to settle a case, then it could be a good thing if they know you are starting to make requests for documents and otherwise gather evidence. This might help them understand that you “mean business”.
On the other hand, you risk souring the relationship with your employer, which could be unhelpful if you’re trying to repair things and move on. Of course, this is less likely to be a problem if you’ve left your job already.
Audio and visual recordings
You might be wondering if you can use audio recordings (such as recordings of phone calls or meetings) or video recordings as evidence in a Tribunal claim. If you think it would be helpful to take a recording, be aware that there are some potential issues around doing this.
Often employees take recordings without telling the other individuals involved - often referred to as “covert recordings”. Whether this is worth doing depends on the circumstances.
When a covert recording could be useful
A recording might be a really effective way of showing to your employer that something has happened - for example, if you have a recording that demonstrates bullying behaviour.
Once you get to the Employment Tribunal, then if the evidence is really important to the case, the Tribunal are likely to let you rely on it, subject to exceptions such as legal advice privilege (this is explained below).
The difficulties with covert recordings
You should bear in mind that there are laws around sharing of recordings and data protection, which mean that you could be in danger of breaking the law. Having said that, the Tribunal is unlikely to be overly concerned about where you got the information from - they are more interested in deciding whether or not it can be used as evidence in the claim. In other words, whether it is admissible or inadmissible.
Employment Tribunals won’t always allow covert recordings to be relied upon - it really depends on the circumstances, and a balancing of different factors. The relevance of the evidence is likely to be the key factor. In other words, is the content of the recording likely to affect the issues in the case, and whether it is won or lost?
Secretly recording can also damage the relationship with your employer, or lead to disciplinary action (if you are still employed) or possibly a reduction in compensation if you are successful in your claim.
If you have taken recordings which you wish to rely upon at Tribunal, then it would be a good idea to also produce transcripts of these, as this can be easier for the Tribunal to quickly refer to.
Keep your evidence organised
Valla makes it easy to collect and keep your evidence organised, and you can even attach evidence to a timeline of your situation to keep track of what happened, and when. Start organising your evidence today for free with Valla.