How to… gather evidence for a staff tribunal
HR professionals and managers need to understand the legal framework in which they operate. This means considering how a staff tribunal would scrutinise evidence should an employee claim come before it.
What goes into the so-called “evidential box” will determine whether claims can be avoided altogether, settled or won. HR practitioners need to equip themselves with a toolkit of essential knowledge, practical skills and confidence in relation to carrying out investigations and collecting and recording evidence. Penny Harper highlights the key areas to consider.
1. The legal framework
Whatever the nature of the claim made by an employee against the employer, it is crucial for the employer to demonstrate that a fair and thorough investigation took place for the Staff Tribunal and that the fair procedures set out in the Acas Code of Practice April 2009, Disciplinary and Grievance Procedures, were followed. Employers are also advised to be familiar with and adhere to the Acas guide Discipline and grievances at work.
2. Know the types of evidence
A tribunal will consider the reliability, credibility and weight of the evidence for the staff tribunal. The source or type of the evidence has an impact on this. So documentary evidence, such as the contract of employment, job description, letters and emails, may be more reliable than circumstantial evidence, such as, for example, the employee being seen working late on the day in question.
3. Ensure evidence is credible
The way that evidence is collected and recorded will affect the reliability, credibility and weight of the evidence. A tribunal wants to know the why, what, where, when, who and how of any investigation, process or procedure. So if, for example, a line manager has to meet an employee to deal with an issue concerning performance or timekeeping, then the details of that must be recorded so that these questions can be answered.
If a disciplinary meeting takes place, then the employer will need to be able demonstrate that the facts/issues were fairly and objectively put to the employee.
4. Distinguish fact from opinion
In conducting investigations and handling grievance and disciplinary matters, it is important to distinguish between facts, assumptions and opinions. As far as possible, factual evidence should be collected and, where the facts cannot be ascertained in the first instance, care should be taken to investigate further to establish them.
5. Keep records
Records are not merely red tape; they are there to protect you. Good practice record-keeping or note-taking is essential to promote fair and accurate decision-making in an organisation and to provide vital evidence in the event of grievance and disciplinary proceedings and litigation. All records should be kept meticulously, as this will be vital should a case be taken to an employment tribunal. The tribunal will order them to be disclosed. The type of records that should be kept might include minutes of meetings, emails, attendance notes, records of telephone calls, copies of correspondence and any interaction with an employee concerning a grievance or disciplinary process. Records are essential for the purpose of establishing the accuracy of the evidence, as well as refreshing the memory in preparing witness statements or reports and in giving evidence at tribunal.
– Familiarise yourself with the Acas guide Discipline and grievances at work
– Use written evidence rather than anecdotes
– Deal with facts, not opinions or hearsay
– Keep records as standard practice – you never know when they might be needed, and they are vital when they are
16th September 2010
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