Please note that these slides provide a basic overview of the issues discussed within our presentation provided to CIPD members on 5 June 2015. If you require a copy of the full slide presentation please contact us.

Excellent Evidence: gathering and preparing effective evidence for Tribunals. June 2015 The content of these slides and the advice given during this session is intended to provide a generic overview and is not intended to be a substitute for legal advice.

Gwynneth Tan Partner gwynneth.tan@shoosmiths.co.uk 03700 868 477 Siobhan Atkin Senior Associate siobhan.atkin@shoosmiths.co.uk 03700 868 319

Tribunal The end result? What is the aim of the employer at a Tribunal? How important is evidence at a Tribunal and how is it presented? What happens if you get evidence wrong?

What is evidence and why is it needed? Legal definition – there isn’t one! A Tribunal will consider the reliability, credibility and weight of the evidence provided by each party. What is hearsay evidence? When can it be used? Evidence is needed to avoid a successful unfair dismissal/discrimination claim.

What type of evidence should employers be gathering? Witness evidence – interview notes to witness statements. Minutes of meetings – should these be agreed? Documentary evidence – emails, letters, policies, contract of employment, internal documents and training materials. Recorded evidence – meetings, CCTV and surveillance.

A new wave of evidence: Social Media Facebook / Twitter / Linkedin When can it be used? What pitfalls are there?

Secret recordings – admissible or not? It might be admissible – if the Tribunal believes it is relevant. How should employers respond to a request from an employee to record a meeting?

Is an investigation necessary? • The investigation stage does not form part of the formal disciplinary process – it is to decide whether the disciplinary process is necessary or not.

The investigation • Understand the allegations being made – take time to get them right from the outset. • Consider how you are going to approach the investigation – planning is key! • Retain physical evidence immediately i.e. data/computer records. • Try and keep internal documents professional –these documents may need to be disclosed at a later stage. • Be careful not to use the exercise as a fishing expedition.

How much investigation is required? Legal test “reasonable in all the circumstances” by reference to the “band of reasonable responses”. Meaningful response required. • The amount of investigation required will vary depending on the individual circumstances of the case. • Should ideally be conducted as quickly as is reasonably possible. ACAS Code – “without unreasonable delay”.

Who should conduct the investigation? • Once there is a decision to investigate the next step is to appoint an investigating officer. The appointed person should be objective, more senior than the employee and not involved in the allegations.

Suspension? • When it is appropriate? • Act without delay. • Always explain the purpose of the suspension. • You must be satisfied that you have reasonable grounds for the suspension in order to avoid breaching the implied term of mutual trust and confidence.

The Investigation All relevant witnesses should be spoken to and notes taken of their recollection of events. Notes are vital. No need for notice of meeting. No right to be accompanied.

The Investigation - Confidentiality • Confidentiality is vital. • Applies both to the person conducting the investigation and to any witnesses. • If this becomes an issue a breach of the implied term of trust and confidence could occur.

The Investigation - Witness evidence Evidence of witnesses often crucial to the investigation. • Witnesses should be interviewed privately and always with the investigating officer and a note taker. • Notes should be made. • Consent will be needed from the witness in order for their evidence to be used in the investigation.

Reluctant Witness? Employers should try to establish the reason for the reluctance, if witness is an employee they should be reminded of the obligation of good faith or fidelity owed towards the employer. The motive of the individual is to be explored. • Can you risk taking a reluctant/hostile witness to Tribunal?

Rights of the employee Employers must follow their disciplinary procedure/policy if they have one – failure to do so could be a breach of contract. • Record keeping is vital to show that no rights have been breached.

Investigation Report • What is it? Confirm in relation to each allegation, whether it is recommended to proceed to disciplinary or not. • Investigating officer must not recommend disciplinary sanctions. • If the decision is to move the matter to a disciplinary then the employer must follow its disciplinary process.

How to conduct a disciplinary hearing. • The disciplinary officer should not be the same person as the investigating officer. What about the note taker? • Right to be accompanied – “reasonable” request changes. • Adjourning for further investigation or decision. • If further allegations come to light, the employee must be made aware of them and given the chance to respond.

The disciplinary decision • What happens if a decision is made on conflicting evidence? What weight should be given to each piece of evidence? • The disciplinary decision letter must address the allegations set out in the disciplinary invitation letter. The letter should decide the appropriate sanctions in relation to each allegation.

Appeal • Right to appeal. • Right to accompaniment. • Must be objective, this is a new process and must be in line with the policy.

Preparing evidence for a tribunal hearing What evidence is used at Tribunal? Good record keeping will assist you at the witness evidence stage at the hearing.

Expert evidence. Evidence in relation to settlement negotiation. Evidence in the litigation process.

If you have enjoyed today…. You may want to attend one of our biannual free employment seminars. If you would like more information about these seminars, or would like to be placed on our mailing list, please contact: beverley.davies@shoosmiths.co.uk