Evidence and Disclosure

Evidence

There are lots of types of evidence which can be helpful in the Employment Tribunal in trying to win your claim.

You might already have some evidence – for example:

• your contract, if you have one, and any later amendments to your contract (Note, these could be via email);
• any other documents about your employment e.g. pay slips or letters/emails/policies;
• anything you’ve written down about what’s happened, e.g. notes you have taken of comments made to you or emails sent by or to you about what has happened; 
• anything else related to your Employment Tribunal case

Before you start your claim, it is important to think about whether you have evidence of the things you are thinking of alleging – for example, if you are going to say that you were treated less favourably than a man at your workplace, do you have evidence to show this? Is there evidence of each claim that you are bringing, and is there evidence at your workplace of men being favoured over women generally?

After you have submitted your claim, and seen your employer’s response (the ET3 form) you may find it helpful to make a note of how you disagree with your employer, and what evidence you have, or will need, to challenge what they have said. Make a list of any documents your employer refers to which you need to see.

For example, if your employer’s ET3 refers to a complaint about you which you’ve never been made aware of, you will need to see a copy, and you may want to ask for any other documents which relate to the complaint.

You might find you need more information or a more detailed explanation to understand what your employer has said, for example if your employer has said that you were not entitled to return to your role after maternity leave because of a restructuring, but where the restructuring and what happened to your role has not been explained.

Types of evidence:

• You might have letters, emails, texts or other types of phone messages about the situation from your employer or work colleagues – for example, a grievance you submitted, or a letter about your disciplinary or dismissal. It is important to preserve evidence, so make sure you get a screen shot of any messages which might otherwise disappear or be deleted. There may also be things which colleagues have, e.g. a letter or email which was sent to them while you were on maternity leave. There may be things which only your employer has, e.g. notes or emails between staff relating to you. There are various ways in which you can try to get copies of these things.
• In some types of claim, particularly discrimination or harassment, it is important to be able to demonstrate how you felt at the time of the acts of discrimination or harassment and particularly injury to your feelings as this will be important when assessing the level of award if you are successful. If you have spoken to your GP or others about how you feel, particularly if you have suffered stress as a result this would also be evidence. It is also very important to be able to accurately recall events, particularly the words used by someone to you if this is a key part of your claim. You may find it helpful to send yourself an email or a text message about what was said or done, and how it made you feel at the time, and this can be important evidence later on.

Disclosure

You can write to your employer, or their legal representative, at any stage of a claim, or even before a claim has been submitted, to ask them to give you information or documents which you don’t have.

When you ask for information after a claim has been submitted, this is called asking for ‘disclosure’.

There is a “duty of disclosure” on both sides in an Employment Tribunal claim, which requires that both parties disclose all documents that are relevant to the claim, not just those documents which help their side. This obligation applies to documents that are in the party’s possession or control – so if you/your employer does not have the document, bit it can be obtained, it should be disclosed.

You will need a bundle for the hearing, a bundle is the set of documents that will be referred to or looked at during the hearing and will include all the evidence for both sides of the case. A bundle should have all the documents that are important for your case, or documents that you or your employer may refer to during the hearing.

It will generally be for the employer, the Respondent to prepare the bundle and this may be something you ask the tribunal to make order for in a preliminary hearing.

Ideally you and your employer will agree which documents to include in the bundle. If this is not possible you can ask the tribunal.

It is normally best to arrange documents in date order, and you should note that you will probably want to refer to some documents in your witness statement – if you don’t refer to documents in your witness statement the Tribunal will not take them into account. Finally, remember that the duty of disclosure continues throughout the proceedings, so it does not end at the date given for disclosure, and new documents may need to be disclosed and added to the Bundle.

Check if the Employment Tribunal has set a deadline for disclosure. If it hasn’t done so already, you can ask for the documents within 14 days.

A date for disclosure is of the things the Tribunal will set relatively early on, possibly by letter ahead of any hearings having taken place, or possibly after a Preliminary Hearing.

Consistency is important. If there are any discrepancies between the documents which are given to the Tribunal, eg different things are written in the Claim Form (ET1), a Questionnaire and a grievance letter, the Tribunal and/or the other side are likely to pick up on this, and the Tribunal may not believe that the Claimant is telling the truth.

If a problem is developing at work, it is a good idea to keep contemporaneous notes. Such notes are useful as evidence for an Employment Tribunal, because the notes were written while the Claimant’s memory was fresh. You may wish to keep a separate work diary, so that notes about your work situation are not mixed up with personal issues, so that you can put in the work diary as evidence. The Claimant should not write in any private conversations with their solicitor, and they should not add any notes later.

The Judicial Office has created a series of eighteen videos designed to explain both tribunal procedure and some of the more complex areas of employment law in a way that is easily understandable, especially to parties without legal representation. There are two short videos on disclosure here and here.

Witnesses

Witnesses can be helpful where there is a dispute over what happened, but they are not essential. Often the Claimant is the only witness in an Employment Tribunal claim, and sometimes the employer has four or more witnesses. This does not mean the Claimant cannot win. The Employment Tribunal will decide who is telling the truth, and whether the Claimant’s case meets the legal test to win their claim.

If the Claimant calls witnesses, make sure the witness’s evidence is necessary, relevant and helpful. Remember that the Employment Tribunal Judge, or the employer’s representative, can also ask the witness questions once they are in the tribunal. Often witnesses can damage a case. It is important to make sure that any witness who you call to give evidence isn’t just trying to help you, because under questioning, and having sworn to tell the truth, they may admit that they don’t know something they previously said they did know, or worse.

If the Claimant can’t remember certain details, do not guess. It is fine to say that they are not sure or that they ‘think’ an event occurred ‘around’ a certain date.

How to get information from your employer

If your employer won’t give you documents you have asked for, or hasn’t done so by a deadline set by the Tribunal, you can ask the Tribunal for an Order. This is an instruction from the Tribunal to your employer to give you what you’re asking for.

You can ask for an order by writing to the Tribunal, and explaining why you think the documents are important.

The Tribunal normally won’t make an order if they think you’re asking for too much, or if your questions aren’t relevant to the case. Remember, you can only ask for evidence to support your case.

If your employer asks you for information

Your employer can also ask you for information and documents. You should provide all information and documents relevant to the case. Sometimes this happens after the ET1 and ET3 have been filed, where the Respondent asks for more details about the Claimant’s case so that they know exactly what is being alleged, including dates, names of individuals involved etc. This is sometimes called asking for “Further and Better Particulars”.

This advice applies in England and Wales. If you live in another part of the UK, the law may differ. Although there are a single set of rules which govern the whole of Great Britain covering Tribunal practice and procedure, there are differences in the way that Scottish tribunals exercise their discretion regarding procedure. For guides, information and resources about employment tribunals in Scotland, see The Scottish Courts and Tribunals Service.  If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.

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