Getting the facts: first steps in gathering and organising evidence
This advice applies to England, Wales and Scotland
At the interview
Getting a story from a client about what happened to them is rarely difficult. They have come to see you because something has upset or worried them or caused them loss and they will be eager to tell you about it. Obtaining an overview should not therefore be difficult. Ask open questions, such as
“Tell me what happened…”
“What happened next?
These will enable you to open out the main points of your client’s story.
The difficulty is often in obtaining relevant information and in obtaining “hidden” facts — those facts your client does not tell you because they think they are unimportant or embarrassing or harmful to their case.
Getting the story from the client is a skill and sometimes you will have to re interview the client once you have carried out initial research. Your research will help you to identify what is relevant. There is nothing wrong with having to seek further information from your client after an initial meeting. What is important is that you do not move on to later stages (trying to resolve the problem) without first being aware of all the relevant facts.
It is surprising how often cases unravel after several months because facts emerge which were not known to the adviser from the outset. This may mean that a possible legal claim has been missed, or that a claim that has been made has no prospect of success. Thorough examination of the facts at the outset is vital.
The following tips are to help you gather the facts you need.
Get the detail
When your client is clearly uncomfortable about a particular topic it’s tempting not to push them. However, in order to give good advice and particularly if you are to pursue a claim you need to know exactly what happened to your client. It is always far better to know the potentially damaging facts at the outset than to have them arise during cross-examination at a hearing, when it will be too late to do anything about them.
Before you interview your client in depth, explain what you want to do at your meeting and why. Give your client an opportunity to prepare, to compose themselves and get ready.
Specific questions such
“when….”
“where…”
“who…”
are the sorts of questions you will need to ask to get the details of the story.
Ask why
“Why” is an often underused question when interviewing clients.
Questions like
- “Why did you resign?”
- “Why do you think you were dismissed?”
- “Why do you think your manager called you lazy?”
are the sorts of questions which can highlight potential claims, particularly discrimination claims.
Explore inconsistencies and gaps
Do not be afraid to review apparent inconsistencies or gaps in your client’s story. If you are confused by something your client has said, then a tribunal will be just as confused. In order to present a persuasive argument to an employer in negotiation, or to a tribunal, the facts your client presents must be persuasive and clear. You want the tribunal to listen to your client’s account and to prefer their account to the employer’s account. If there are inconsistencies or gaps then the facts are not persuasive. It’s not in your client’s interests to ignore confusion or inconsistency. You must deal with it — ask why, and look for clarity or an explanation.
You do not need to do this in a confrontational way. Say your client alleges that he was the subject of a completely unprovoked physical attack by a colleague. You might ask your client to explain in detail exactly what he and your client were doing in the minutes before the attack. Or you might ask “what reason do you think (colleague) might give for what he did?”.
Check your understanding of the facts by summarising
Summarising the facts your client has given you is a useful technique: “Let me make sure I understand this exactly. You have worked for ABC since… etc”. This gives your client the opportunity to correct any misunderstandings and add information which occurs to them as you speak.
After the interview
Start to prepare a chronology
It is good practice, and can help you identify claims, to draft a chronology at the start of every case. If you do this during the interview, with the client, it is a good opportunity to ensure that you have understood the facts correctly.
This need only be a couple of columns with important dates. List everything that happened in date order. Be brief but include all important events eg
Highlight any dates or events you’re unsure of. This will help you to identify where there are any gaps in the facts that you have, and to look for evidence.
Keeping a discrimination diary
You could ask your client to keep a discrimination diary to keep a record of events as they happen. This can also be used as evidence to show what happened. It doesn’t have to be in a set format. It could be:
- a note in a diary
- notes in a notebook / diary / on a phone
- an email containing the details
Prepare a document list
Most clients will bring some documents to the first interview. These might include
- Contract of employment
- Correspondence
- Payslips
- Minutes of disciplinary / grievance meetings
- Statements taken from colleagues in the course of disciplinary / grievance meetings
You should read these and examine how these fit with the facts your client presents. As you read them consider:
- Are there any inconsistencies? For example a difference in what the client said in disciplinary hearings and what they are now saying? If so, clarify them with your client
- Do they help to identify what the employer’s version of the events might be? If so, what is your client’s response?
- Do they fit in with the chronology your client has given? If not, is the date of the document incorrect, or your client’s account?
You should then be able to work out what documents might exist that you do not yet have, and which may be relevant. Does your client have a copy? Or will you need to obtain them from the employer, or a third party?
After the interview you will need to collate the documents your client has provided. It is a good idea to keep those documents in a separate part of your file to other documents (such as correspondence with the employer). The document list can serve as an “index” to those documents and be amended as you gather more during the case.
Identify potential claims and time limits
You also need to make an initial assessment about what possible claims there might be, and what the time limits are.
The time limit for starting legal action is 3 months less one day from the date of the discrimination. In the case of a single, discriminatory act, it should be relatively easy. If there has been a course of discriminatory conduct extending over a period, time runs from the end of that period.
If you are describing something like continuing harassment, you can give the period over which it occurred, and exact dates of individual incidents when you know them.
You’ll need to work out whether a series of individual incidents can be classed as a single continuing act of discrimination ‘extending over a period of time’. This is where they’re linked to each other, for example if your employer uses homophobic language to describe you on several occasions or continues to apply a discriminatory policy to you.
If the incidents are linked, the law calls them a ‘continuing series of acts’ a ‘continuing act’ or an ‘act extending over a period’. The time limit for starting Acas early conciliation runs from the last day of the period, and so where Acas early conciliation begins within three months, minus 1 day, of that date, the whole series of acts is included in the claim and is in time. . This is covered in section 123(3)(a) of the Equality Act 2010. It is a good idea to use the earliest date possible so you can include as many acts as possible.
If the incidents are not linked and part of a continuing act, you’ll have different deadlines for each act For example if your colleague made a racist comment and you’re sacked a month later because you’re pregnant those incidents , might not form part of the same continuing act. You should then use the earliest date as your deadline for each separate incident. You can make the claims on the same claim form.
Check if:
- the last incident is definitely discrimination — if it’s not, then it can’t form part of a series of discriminatory acts, and this means your claim could be out of time and , the tribunal could reject your case
- there’s a long gap between the different incidents — if they’re far apart, they might not be one continuing act
If you’re not sure of the date, it’s usually best to use the earliest date possible as the date from which time starts to run. If you use a later date, the tribunal could decide that the later incident wasn’t discrimination or that the earlier acts aren’t linked.
Example
In the case we considered above, the client won’t be able to claim unfair dismissal (he has less than 2 years’ service) but there may be disability discrimination, if he can show that the knee injury causes an impairment which brings him within the definition of disability in section 6 of the Equality Act 2010. There may be discrimination because of something arising in consequence of his disability, and earlier failures to make reasonable adjustments (on several occasions, because he specifically asked twice for adjustments and actually returned to work for a while, with no adjustments). If these are found to be part of a continuing act of discrimination with the final incident being his dismissal on 2 April 2018, then his time limit expires on 1 July 2018. If on the other hand the tribunal views these as two separate claims, the dismissal and the failure to make reasonable adjustments, then those earlier failures will be out of time.
It’s not unusual in discrimination claims to have several different key dates. Each needs to be identified and recorded.
You also need to bear in mind the fact that grievance and appeal letters will be necessary in many cases if the client is to avoid reductions in any compensation they are awarded. You need to identify whether such action is required, and when it has been done. If, once you have carried out the assessment, you believe that your claim is out of time you may be able to apply for an extension of time. [Making a late claim about discrimination in the employment tribunal]
Key date diary
You need to have a system for monitoring dates and making sure that they are met. You may have your own computer or paper system for keeping track of dates. However there should also be a “back up” (preferably paper system), so that if for any reason you are unable to deal with the case, a colleague will be able to see immediately what needs to be done.
You should not only have such a diary, but have a system by which it is regularly checked. For example it should be the task of a designated person to check the key date diary regularly, note any dates occurring, say in the next 2 weeks, and provide you with a reminder.
File management
Basic file management is a simple way to save significant amounts of time. Organising files in a manner which is common for all files (and all caseworkers if there are several caseworkers in the organisation) will make it much easier for you to find relevant documents later in the case. It also makes it easy for others (eg admin workers or those carrying out supervision) to find things in a file.
The organisation of a file is often personal to the user but the following suggestions are the minimum that will be required:
- Information sheet containing all relevant information for the case. This would include all contact details of the claimant and the respondent, the respondent’s representative, the ACAS representative, witnesses and availability of the parties.
- Progress sheet containing all relevant dates, including key dates for issuing a claim, actioning tribunal deadlines, hearing date, etc. It is also useful to include a check box for the sending and receiving of documents, eg grievance letter and replies.
- Compensation calculation. This is living document, which will be updated throughout the life of the case.
- Comprehensive file notes. These will include notes of all client contact, recording what was discussed, when, and any agreements reached.
- Index of documents showing the source, date, and whether they are claimant’s or respondent’s papers. It’s common to accumulate a number of documents, some of which may be versions of the same document — it is vital to know which version you received from where. You could make a pencil note on the back of a document or put them in separate folders to avoid confusion
- Separate sections for Tribunal correspondence and forms such as ET1 and orders and should be flagged for easy reference; Evidence (the documents; Witness evidence; File notes
The point to remember is that you need to know exactly what is in the file, its relevance and where to find it. There is a real danger of overlooking crucial evidence when files become disorganised. Having a well-organised file will make preparation of document bundles and witness evidence much easier at a later date.
