Gathering & presenting evidence for the tribunal
Evidence is the backbone of any tribunal case. It helps the judge and panel understand the facts and make a fair decision. Evidence can include documents, emails, witness statements, and even recordings. Knowing what evidence to gather and how to present it can make a significant difference to your case.
Gathering important evidence
What Evidence Should You Collect?
The evidence you gather will depend on the nature of your claim, but common examples include:
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Contracts and policies: Your employment contract, disciplinary policies, and grievance procedures.
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Correspondence: Emails, text messages, or letters between you and your employer.
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Meeting notes: Records of disciplinary hearings, appraisals, or performance reviews.
- Audio recordings: Recordings of meetings or incidents which can be transcribed.
- Photographic or video: Photos, screenshots or video which support your case.
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Contemporaneous notes: Written records, including text messages or social media posts, made at the time of an incident.
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Witness statements: Statements from colleagues or others who can support your case.
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Pay records: Payslips or records of bonuses to prove financial loss.
Tips for gathering evidence
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Act quickly: Start gathering evidence as soon as possible. Some documents might be deleted or become inaccessible over time. If your employer has the evidence you require, you can submit a DSAR.
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Be organised: Keep digital and physical copies of everything, clearly labelled with dates and descriptions. Ensure you have back-ups.
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Stay within the law: Avoid accessing information you’re not authorised to see, as this could harm your case. It’s worth noting you cannot request other people’s data with a DSAR. Whilst you can present covert audio or video recordings, this can reflect badly on you and many employers would likely consider this as gross misconduct (if you’re still employed you could lose your job, or any tribunal award you receive may be subject to a polkey deduction).
Contemporaneous notes
What are contemporaneous notes?
Contemporaneous notes are written records made at the time an event occurs or shortly after. These notes can capture important details while they’re fresh in your mind, making them a valuable piece of evidence in employment disputes, as they add significant weight to a he said/she said argument.
Why Are Contemporaneous Notes Important?
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Memory aid: They help you remember specific events, conversations, or actions that may be significant to your case.
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Credibility: Tribunals often view contemporaneous notes as more reliable than recollections made long after the event.
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Corroboration: They can support other evidence, such as emails or witness statements, by providing additional context.
How to Create Effective Contemporaneous Notes
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Be prompt: Write your notes as soon as possible after an event or conversation.
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Be detailed: Include key information such as dates, times, participants, and what was said or done.
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Stick to facts: Avoid including opinions or assumptions; focus on what you observed.
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Keep them safe: Store your notes securely, ensuring they’re dated and signed if possible.
Examples of When to Take Notes
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After meetings with your employer or HR.
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Following conversations about performance, disciplinary action, or grievances.
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During incidents of discrimination, harassment, or unfair treatment.
Data Subject Access Requests (DSAR)
What is a DSAR?
A DSAR, or Data Subject Access Request, is a way for individuals to access personal data held by their employer or another organisation. Under the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018, individuals have the right to request this information.
Why Request a DSAR?
A DSAR can be incredibly useful if you believe your employer has information relevant to your case. For example, you might uncover:
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Emails or messages discussing your performance, conduct, or dismissal.
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Meeting notes or appraisals that contradict your employer’s claims.
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Evidence of unequal treatment or discrimination.
How to Request a DSAR
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Write a formal request: Address your request to your employer’s data protection officer or HR department. Include details like your name, the time period for the data, and specific information you’re seeking. You do not need to specify why you want the data. Use our DSAR template!
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Be clear and specific: While you’re entitled to request all personal data, being specific is incredibly important for both accuracy and speed. Some employers may be difficult on purpose, especially if the relationship has broken down. If you are not specific you may be overwhelmed with irrelevant data or vital documents will not be included because your nickname was used in an email instead but you asked only for your full name. An example of a strong request may be: “all emails mentioning my name (including, but not limited to: Thomas Smith, Tom Smith, T Smith, Mr Smith) between January and March 2024”.
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Expect a response within one month: Employers must legally respond within one month, although they can extend this by two months for complex requests. The more specific your request, the less likely the employer can reasonably delay the response.
What to expect from a DSAR
Whilst a DSAR can be an extremely effective tool in gathering evidence for your employment tribunal, you may be surprised to find the majority of the content is redacted. This is because the employer only needs to provide data related to you, and they may rely on technicalities to make documents unreadable and/or irrelevant.
If the employer does not respond to your DSAR you should try again, reminding them of their legal duty to comply. Whilst you can report them to the ICO, only the most serious cases are pursued. If a DSAR does not work, you can request a court-ordered document disclosure from the tribunal. View our enforced disclosure template.
Your witnesses
What is a witness?
A witness in an employment tribunal is someone who provides evidence to support your case or your employer’s case. Witnesses can include:
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Colleagues: People who directly observed relevant events, such as meetings or incidents.
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Managers or supervisors: Those involved in decisions affecting your employment, such as dismissals or disciplinary actions.
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Experts: Professionals who can provide technical or specialised knowledge, such as medical experts in a disability discrimination case.
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You: As the claimant, you are also a witness and will provide your account of events.
What Should You Consider When Calling a Witness?
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Relevance: Ensure the witness has direct knowledge of the events in question. Tribunals value first-hand evidence over hearsay. You want to ensure witness testimony adds something significant to your case, rather than just highlights evidence already included within the bundle.
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Credibility: Choose witnesses who can provide clear, truthful, and consistent testimony. A witness who appears biased or unreliable could harm your case.
- Hostile witnesses: It is best to avoid anyone who could be considered a hostile witness, someone who is likely to something not in your favour. Hostile witnesses can include anyone who still works for the employer, as they may not want to say anything which could negatively affect their working relationships or employment.
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Preparation: Brief your witnesses about the tribunal process and what to expect. However, avoid coaching them on what to say, as this could affect their credibility.
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Availability: Confirm that your witnesses are willing and able to attend the hearing. Witnesses can usually provide evidence in person or via video link.
When you call a witness it is the employer who gets to cross-examine them, not you. You will not be able to question your witnesses with the intention of getting them to say exactly what you want. It is their written witness statement that is important to your case, with their truthfulness, accuracy and reliability which will be tested by the Respondent. In the majority of employment tribunal cases, there is only one witness for the Claimant… the Claimant themselves.
How to Call a Witness
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Once you’ve identified who you want to call as a witness, speak to them and ensure they are happy to do it. Whilst you can legally force someone to be a witness, this is probably not a good idea as it suggests they will be a hostile witness and could harm your case.
- If your desired witness is not willing to engage, and you are willing to take the risk of having a hostile witness, you can apply to the tribunal for a court-enforced witness order.
- Make sure you inform the tribunal of who you will be calling as a witness. This can be done at a preliminary hearing or through informing the tribunal.
How to Support Your Witnesses
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Provide them with a copy of their witness statement well in advance.
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Ensure they understand the tribunal’s procedures, including cross-examination.
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Encourage them to remain calm, truthful, and professional during the hearing.
Witness statements
What is the witness statement?
Witness statements play a critical role in employment tribunals. Every witness at the final hearing, including yourself, will produce a written document which outlines their version of events. It acts as the ‘evidence in chief’ of each witness, meaning that everything written within it is classed as evidence.
When and how to draft a witness statement
It is highly recommended to start writing your witness statement as soon as you can, rather than waiting for a judge’s instruction. By writing down everything that has happened, in a clear and logical way, it will help you identify what evidence you will need to rely on. Your witness statement should primarily be factual and make references to where the evidence is within the trial bundle. For example: “I sent an email to Mr Jones regarding the incident [p.134].”
The trial bundle
What is a bundle?
A bundle is a collection of all the evidence you’ll present at the tribunal. Both you and your employer will contribute to the bundle, and it should include all documents both parties intend to rely on. The expectation is that there is only one joint trial bundle which is relied on.
How to Prepare the Bundle
- Disclose all evidence: Both the Claimant and Respondent should be aware of all evidence being relied upon. It is rare that you will be allowed to introduce new evidence at the final hearing.
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Follow tribunal rules: Your tribunal will provide guidance on how to prepare the bundle. Typically, is is the employer’s responsibility to prepare the bundle, especially if they are legally represented. There will be strict deadlines for the creation of the bundle, broken down into document disclosure, agreeing an index, and creation of the bundle.
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Organise logically: Group similar types of evidence together (e.g., correspondence, policies, witness statements) and arrange them in chronological order.
- Ensure relevance: Only include evidence which directly supports your claim and will be relied upon in the witness statements or likely mentioned in cross-examination. Judges do not look fondly upon large bundles full of irrelevant documents.
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Create an index: An index at the front of the bundle makes it easy for the judge and panel to find specific documents. The tribunal will likely instruct you to agree the index with your employer.
- Supplemental bundles: If you and the employer cannot agree on a joint bundle, you could make your own supplementary bundle for the judge. This is frowned upon, but it is important that all evidence is presented to the tribunal.
What to Include in the Bundle
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A clear index listing all documents.
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All evidence you’ve gathered that supports your case.
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Any relevant tribunal correspondence.
Practical Tips
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Use a clean copy: Ensure the final bundle is neat and free from personal notes or annotations.
- Proper formatting: The bundle should be paginated (numbered) and divided into relevant sections.
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Submit on time: Follow deadlines set by the tribunal for submitting your bundle.
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Keep extra copies: Bring multiple copies to the hearing for the judge, panel members, and your own reference.
- Set expectations: The judge and panel members will not read the whole bundle. They will likely only look at the evidence referred to within the witness statements or mentioned during the hearing.
