Evidence in employment disputes-keeping notebooks, sending emails (the problem)

An employee will often come to me with an enthusiastic intention to bring an employment claim against their employer.

They are going to get justice. Or compensation. Or prove a point based on a principle. Whatever.

Regardless of the motivation we must then look at how to win the case, and what the prospects are.

When we discuss the situation and delve a little deeper into the facts of the situation it quickly becomes clear that there will almost certainly be a straightforward dispute as to what happened in the workplace. What essentially gave rise to the dispute.

The facts of the case and the circumstances which led up to the breakdown of the relationship are vital. And it does not matter whether it involved a dismissal by the employer or a resignation by the employee.

If there is a dispute about the facts the case will be more difficult to win.

Then I explain the difficulty that the case may well come down to a ‘swearing match’ between employer and employee. That is, “he said, she said”.

The decision maker, whether a judge or a WRC adjudicator or the Labour Court, will face the difficult problem in deciding whose version of events is the most likely to be true. Because this may well determine the winner of the case.

This is where the existence of evidence will be of critical importance.

And the employee will tell me that they kept a notebook. Or they have a huge volume of emails that they sent. And they mistakenly believe that this is evidence or proof of what they are claiming.

But it’s not.

I must explain to them that keeping a notebook is an excellent move. But it does not prove the truth of what is claimed in that notebook. All it proves is the employee made the note at some point.

Now, the notebook may be later relied on to jog one’s memory or keep an accurate timeline of what happened. But it will not, of itself, be of strong, or any, evidential value.

The same principle applies to emails the employee may have sent. All that is proved by this is the email was sent but it does not establish the truth of what was claimed. And you cannot rely on the silence or failure of the other side to establish the truth of what you claimed.

Although the other side would be well advised to deny it in writing at the earliest opportunity. But I digress.

On the other hand, if the employer writes back and makes some damaging admission or provides evidence of what the employee is claiming-that is an entirely different matter. This may be evidence of some of what is being claimed by the employee.

I hope you can see that whilst it is advisable to keep a notebook, for example, of inappropriate treatment in the workplace if you are later going to claim that you were bullied that notebook will not necessarily be evidence of what you claim.

Leaving aside the question of written evidence for the moment, you will always have direct evidence in a WRC hearing or the Labour Court.

This may well conflict diametrically with what the employer has to say. This does not mean that you will not be believed, or your evidence is of little value.

It may well be the case that the WRC adjudicator or the Labour Court or a court will accept that your version of events is the more likely. In other words, you will be believed.

But if this is all you have-that is, direct evidence-you need to recognise the difficulty of proving your claim. And remember you must prove your claim.

Evidence in civil actions

If you want to learn more about evidence in civil legal actions take a look at Evidence in Civil Legal Actions-What You Need to Know