Employee tribunals: Do you have the evidence?
HR professionals and managers need to recognise and understand how their organisation works and the legal structure within it. This includes bearing in mind how an employee tribunal would analyse the evidence, following an employee claim.
Scrutinising evidence will mean determining whether claims can be disregarded altogether, settled or won. HR professionals are required to provide themselves with the essential knowledge, practical skills and assurance with regards to execute the investigations being carried out and obtain and record any evidence.
Penny Harper, Director at Legal Experience Training Ltd reveals the important areas to think about.
– The Legal Framework
It is vital for any employer to show that a fair and detailed examination has taken place (whatever the type of claim), when facing a claim from one of their employees. They also need to ensure that the fair measures which are set out in the Acas Code of Practice April 2009, Disciplinary and Grievance Procedures were adhered to. Employers should also familiarise themselves with the Acas guide Discipline and Grievances at Work.
– Know the different sorts of evidence
A tribunal will take into account the reliability, credibility and weight of the evidence along with the source or type of evidence. Evidence that has been documented (i.e. contract of employment, job description, letters, emails etc) may be more reliable than circumstantial evidence (i.e. the employee has been seen working late on the particular day in question).
– Make sure the evidence is credible
The way that the evidence is collated and documented will have an impact on the evidence’s overall reliability, credibility and weight. A tribunal will want to know every detail; why, what, when, who and how. For example, a manager needs to meet an employee to deal with a particular issue regarding timekeeping; these details will need to be noted so that these questions can be answered.
If an employee requires a disciplinary meeting, then the employer will need to show that the details/issues were dealt with fairly and neutrally.
– Differentiate fact from opinion
When handling or investigating grievance and disciplinary cases, it is extremely important that you are able to differentiate between facts, assumptions and opinions. The facts need to be collated where possible and in parts where this is not possible, additional care should be taken when trying to determine them.
– Keep records
The purpose of keeping records is to protect you. Making sure you keep records or note taking is vital if you want to promote fair and accurate decision making within a company, and it can also provide important evidence in grievance and disciplinary matters and court proceedings. Every detail should be kept on the employee’s record in case their matter is taken to an employment tribunal, where they will order the details to be disclosed. The types of records that should be kept include: Meeting minutes, emails, attendance notes, records of telephone calls, copies of correspondence and any interaction with an employee relating to a grievance or disciplinary matter. Records are vital for the use of determining the accuracy of evidence, along with refreshing people’s memory when preparing witness statements or reports and in giving evidence at a tribunal.