Gathering evidence to support the employee’s case

During this period, the employee should be encouraged to gather evidence to support their case. Depending on the allegations, this might include:

• the employment contract;

• good performance appraisals;

• letters or emails with positive feedback from management, clients, or fellow workers (being careful not to breach confidentiality);

• relevant employment policies;

• anything that casts doubt on the reason for the disciplinary, for example, evidence of trade union activity;

• concrete examples of similar incidents involving other employees where the employer’s response has been more lenient; and

• statements from witnesses or other people who might have relevant and helpful evidence.

Colleagues should not be pressured to give evidence, and workers should take care when collecting evidence not to infringe other policies at work, such as patient confidentiality, since this may lead to separate disciplinary action. For an example of the dangers see Portsmouth Hospitals NHS Trust v Corbin [2017] UKEAT/0163/16/LA summarised on page 20.

Being suspended can make it very hard to collect evidence. In most cases, it is likely to be unreasonable for the employer to ban the member from contacting co-workers to ask them if they would be willing to provide evidence. Where this happens, consider writing to the employer to object to the ban and to ask for an explanation, pointing out that it makes it very difficult for the member to prepare their case.