Employment tribunal evidence for employers

The rules: the response, the time limits and how evidence is heard

Employment tribunals in England, Wales and Scotland run under the Employment Tribunal Procedure Rules 2024, in force since 6 January 2025; rule 1(4) of the Employment Tribunal Procedure Rules 2024 says “These Rules extend to England and Wales and Scotland.” Two rules decide what counts as evidence. Under rule 41(3) of the 2024 Rules, “The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts”, so a document is not shut out because it is informal, handwritten or a message. Under rule 43 of the 2024 Rules, a witness statement ordered by the tribunal “must stand as that witness’s evidence in chief unless the Tribunal orders otherwise”, and “Witnesses are required to give their oral evidence on oath or affirmation.”

In England and Wales the detail sits in Presidential Guidance, chiefly the Presidential Guidance on general case management (22 January 2018). It says tribunals “must have regard to such Presidential Guidance, they will not be bound by it”. It was written for the 2013 Rules, and the judiciary's list of practice directions and guidance for England and Wales says it remains in effect and that references in it to the 2013 Rules are to be read as references to the 2024 Rules, using a conversion table it links (so the guidance's witness order under “Rule 32” is now an order under rule 34). Scotland has its own practice directions for Employment Tribunals in Scotland.

The response comes first, and its clock is short. Under rule 17(1) of the 2024 Rules “the Tribunal must receive the response within 28 days of the date that the copy of the claim form was sent by the Tribunal” – received, not posted, and counted from the tribunal's sending, not from when the claim reached the right desk. GOV.UK's guide Being taken to an employment tribunal puts it plainly: “You must respond to the claim within 28 days.” and “If you’re late or do not respond, the tribunal may make a decision against you without a hearing.” That is rule 22(2) of the 2024 Rules: the tribunal decides whether “on the available material” a determination can properly be made. Since 1 October 2026 the Practice Direction on the presentation of claims, responses and statutory appeals (England and Wales) allows a response (the ET3) to be presented by only four methods:

• online, using the HM Courts and Tribunals Service online submission service, which the Practice Direction calls “generally quicker and easier”;
• by post to the Employment Tribunal Central Office in Loughborough;
• by hand to one of the tribunal offices listed in its schedule;
• exceptionally, by email – and only where the online service has failed: an email response “will not have been validly presented unless accompanied by a screenshot of the error message generated by the online submission service confirming a system malfunction at the relevant time.”

Paragraph 10 is the one to remember: “A claim or response that is not presented in accordance with this Practice Direction will be rejected.” It replaced the Practice Direction of 16 April 2025.

Time limits rose to six months on 1 October 2026. Section 111(2)(a) of the Employment Rights Act 1996 now gives an unfair dismissal claimant until “the end of the period of six months beginning with the effective date of termination”, and section 123(1)(a) of the Equality Act 2010 gives a discrimination claimant “the period of 6 months starting with the date of the act to which the complaint relates”. Regulation 3 of S.I. 2026/954 brought section 152 and Schedule 12 of the Employment Rights Act 2025 into force on that date, covering most tribunal claims, but regulation 4(1) says the change does “not apply in any case where the relevant date occurs before 1st October 2026”: for a dismissal or act before that date the limit is still three months. Regulation 4(2) and the Schedule fix the relevant date for each kind of claim: for unfair dismissal it is the effective date of termination; for a discrimination complaint at work it is the date of the act or, “in the case of conduct extending over a period, the end of the period”; for a series of deductions from wages it is the last in the series. That matches section 123(3)(a) of the Equality Act, under which “conduct extending over a period is to be treated as done at the end of the period”, so conduct that straddles 1 October 2026 gets six months. Acas early conciliation still extends the limit (section 111(2A) applies section 207B), and the tribunal can still hear a late claim where it was “not reasonably practicable” to bring it in time (unfair dismissal) or within “such other period as the employment tribunal thinks just and equitable” (discrimination). The qualifying period for unfair dismissal has not changed yet: section 108(1) of the Employment Rights Act 1996 still requires two years' continuous employment. That changes on 1 January 2027. Regulation 3 of S.I. 2026/559 brings section 25 of the Employment Rights Act 2025 into force on that date: it substitutes “six months” for “two years” in section 108(1), and omits section 124, the limit on the compensatory award. Under regulation 4(1) the changes apply where the effective date of termination falls on or after 1 January 2027, including where the employee was dismissed before that date, and not where it falls earlier.

For an employer the practical reading is simple. A dismissal in November 2026 can produce a claim the following May, or later once conciliation is added, and the evidence that answers it is whatever was written down at the time and kept.

What an employer's evidence usually is

GOV.UK's page for employers Being taken to an employment tribunal: before the hearing gives four examples of documents: “a contract of employment”, “pay slips”, “details of a pension scheme” and “notes from relevant meetings”. The Presidential Guidance (Guidance Note 2, paragraph 7) widens the list: relevant documents “may include documents which record events in the employment history: for example, a letter of appointment, statement of particulars or contract of employment; notes of a significant meeting, such as a disciplinary interview; a resignation or dismissal letter; or material such as emails, text messages and social media content (Facebook, Twitter, Instagram, etc).”

In a school, charity, nursery or care provider, the employer's evidence usually falls into five groups:

• The terms. The contract or statement of particulars, the job description, and the version of each policy in force at the time: disciplinary, grievance, capability, sickness absence, the staff code of conduct and any safeguarding policy the case turns on.
• The process record. Invitation letters, notes of investigation meetings and witness interviews, the investigation report, notes of the hearing, the outcome letter, the appeal and its outcome. The Acas Code's foreword says employers “would be well advised to keep a written record of any disciplinary or grievances cases they deal with” – advice in the foreword, not a paragraph of the Code. See what to record in a grievance and how to write a contemporaneous note.
• The facts behind the decision. Absence and sickness records, training records, supervision notes, rotas and timesheets, incident and safeguarding records, and any regulator correspondence the decision relied on.
• Pay and loss. Payslips, pension details and, where a claim is about pay, the calculation, all relevant to any compensation.
• The correspondence. Emails and messages to and about the claimant – including those between managers – which the guidance names directly. The messages are where most employers are weakest, because many were never sent through anything the organisation holds.

Two cautions. None of these sources sets a retention period for HR or tribunal files; how long to keep each record is your retention schedule's decision, informed by the limits above. And the documents are only half of it: a well-kept file still needs a witness who can speak to it.

Disclosure, the disclosure list and the hearing bundle

The Presidential Guidance defines disclosure as “the process of showing the other party (or parties) all the documents you have which are relevant to the issues the Tribunal has to decide.” Its central sentence (Guidance Note 2, paragraph 8) is: “Any relevant document in your possession (or which you have the power to obtain) which is or may be relevant to the issues must be disclosed. This includes documents which may harm your case as well as those which may help it. To conceal or withhold a relevant document is a serious matter.” In practice a tribunal gives that force by an order: GOV.UK says “Usually the tribunal will issue an order setting out a timetable for when you should exchange documents”, and the guidance says a formal order “usually states the latest date by which the process must be completed.” Behind it sits rule 33 of the 2024 Rules: “The Tribunal may order any person in Great Britain to disclose documents or information to a party”.

The orders and the preliminary hearing. The dates for disclosure, the bundle and witness statements are usually fixed by case management orders, made by an employment judge on the papers or at a preliminary hearing dealing with case management. Before that hearing “the Tribunal will often send out an agenda to the parties”, which “should be completed in advance of that Preliminary Hearing and returned to the Tribunal” and, if possible, agreed with the claimant (Presidential Guidance, introduction, paragraph 23). Treat the dates as binding: “Orders are important. Non-compliance with them may lead to sanctions.” If a date cannot be met, the guidance says to discuss it with the other side and then apply to the tribunal to vary the order, rather than letting it pass.

The employer is expected to lead. Paragraph 11: “In most cases, the respondent (usually the employer) has most or all of the relevant documents. This often makes it sensible for the respondent to take the lead in disclosure. Each party prepares a list of all relevant documents they hold and sends it as soon as possible to the other party.” That list is the employment tribunal disclosure list. Copies exchanged should be “clean” copies, “unmarked by later notes or comments, unless those notes or comments are themselves evidence”. Paragraph 9 says a party “is usually not required to disclose a copy of a "privileged" document”: for example something created in connection with preparing its tribunal case “(such as notes of interviews with witnesses)”, correspondence with its lawyers, “without prejudice” correspondence and discussions, “or records of exchanges with ACAS”. That covers notes made in preparing the tribunal case, not the notes of the organisation's own investigation and disciplinary interviews, which were made before any claim and belong on the list: paragraph 7 names “notes of a significant meeting, such as a disciplinary interview” among the relevant documents. Holding things back gains nothing: “There is no point in withholding evidence until the hearing. This only causes delay and adds to the costs. It may put you at risk of having your case struck out.”

The hearing bundle. The parties then agree the bundle, which “should contain only the documents that are to be mentioned in witness statements or to be the subject of cross-examination at the hearing, and which are relevant to the issues in the proceedings” (paragraph 13). Paragraph 14 says one party prepares it, “often the respondent because it is more likely to have the necessary resources”, in “a proper order (usually chronological)” with every page numbered. Disputed documents go in a separate section for the tribunal to decide. Everything exchanged is for the case alone: “The documents must not be used for any purpose other than the conduct of the case.”

The Presidential Guidance on mode and listing of hearings, remote participation and electronic documents (England and Wales, 4 June 2026) calls the bundle the hearing file: “The hearing file is the file of documents that is to be used at the hearing. Many judges and legal professionals will call this the "bundle".” Where the tribunal has ordered electronic documents and at least one party is represented, its paragraph 24 sets the format:

• witness statements and other documents “must be in PDF format”, although a case management agenda may be in Word and the tribunal may ask for some documents, such as lists of issues or written submissions, in Word (24.2);
• the index sits at the front, hyperlinked, or in a separate PDF (24.3);
• “All pages in the hearing file must be numbered electronically and not by hand” (24.4), starting at page 1 “whether or not the first page is an index” (24.5), with no separately numbered sections;
• significant documents “(such as a letter of dismissal or an appeal outcome letter) must be bookmarked” (24.7), and every page is OCR'd so it can be searched (24.8);
• documents added after the file has gone to the tribunal go at the end, “using the same numbering system” (24.15).

Unrepresented parties are “encouraged to comply so far as possible”, so an employer without a lawyer that builds its file this way loses nothing.

Preserve before you are asked. The guidance reaches documents “in your possession (or which you have the power to obtain)”. Whether work messages on a manager's own phone fall within that depends on the facts, so the safe course is to treat them as if they do. Once a claim is contemplated, tell everyone involved in writing to keep every message, email and note about the case, including on personal devices. The employer asks; it cannot seize a personal phone, and a compulsory order is for the tribunal under rule 33. How messages are proved, and what a screenshot does and does not show, is in our guide to WhatsApp messages as evidence; the policy side is in work messages on personal phones.

Witnesses and witness statements

The guidance tells each party to “consider who they need to give evidence in support of their case”. For an employer that is usually the investigating officer, the manager who took the decision, the manager who heard the appeal, and anyone who saw the events at first hand. Choose them by what they can speak to: a manager who was not there can explain a document but cannot say what happened. GOV.UK says “You’ll be given at least 14 days’ notice before the hearing” and “You must prepare documents and arrange for witnesses to attend in advance.”

Statements. The tribunal “often orders witness statements to be prepared and exchanged” and reads them in advance “so that they stand as the evidence in chief” (Guidance Note 3, paragraph 10). Paragraph 16: “The witness statement should be in a logical order (ideally, chronological) and contain numbered paragraphs. It should cover all the issues in the case.” Paragraph 17 explains why it must be complete: “The statement should be as full as possible because the Tribunal might not allow the witness to add to it, unless there are exceptional circumstances and the additional evidence is obviously relevant.” The June 2026 guidance adds that each witness should have their own statement, all the other statements and a copy of the hearing file “in a version that precisely reflects that provided to the tribunal.”

Witnesses who will not come. Under rule 34(1) of the 2024 Rules, “The Tribunal may order any person in Great Britain to attend a hearing to give evidence, produce documents, or provide information.” That matters for former staff, who are often the people who saw what happened and no longer answer to the organisation. GOV.UK: “If you ask a witness to attend and they do not want to, you can ask the tribunal to order them to come.”, and “You’ll most likely be responsible for paying the witness’s expenses.” The application gives the witness's name and address, a summary of their evidence, and why an order is needed (Guidance Note 3, paragraph 8). An order “can also be useful where the witness is willing to attend, but their employer will not release them to attend” (paragraph 6).

Who goes first. The tribunal sets the order. As the guidance puts it, “in unfair dismissal cases this is usually the employer, but in discrimination cases this is often the employee” (Guidance Note 5, paragraph 8) – so in an unfair dismissal claim the employer's witnesses usually walk the tribunal through the bundle first.

Burden of proof: who has to prove what

The burden of proof depends on the claim, and in the two commonest claims a good part of it sits with the employer.

• Unfair dismissal. Under section 98(1) of the Employment Rights Act 1996, “it is for the employer to show” the reason (or principal reason) for the dismissal, and that it is a reason within section 98(2) – capability or qualifications, conduct, redundancy, or a legal duty or restriction – or “some other substantial reason”. The tribunal then decides under section 98(4)(a) whether “the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee”, taking into account “the size and administrative resources of the employer’s undertaking”. Reasonableness is judged largely on the process record: the investigation, the hearing and the appeal.
• Discrimination. Under section 136 of the Equality Act 2010, which applies to employment tribunals, “If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred”, unless “A shows that A did not contravene the provision.” Once the claimant has shown those facts, the employer has to prove the explanation, and its documents are usually where that proof is.

The Acas Code of Practice on disciplinary and grievance procedures adds a further reason to keep the process record. Its foreword says “employment tribunals will take the Code into account when considering relevant cases” and “Tribunals will also be able to adjust any awards made in relevant cases by up to 25 per cent for unreasonable failure to comply with any provision of the Code.” The adjustment works both ways – up for an employer's failure, down for an employee's – and the Code does not apply to redundancy dismissals or the non-renewal of fixed-term contracts. Acas consulted on a draft replacement Code from 30 July to 23 September 2026; until a new Code is approved and in force, the 2015 Code is the one tribunals apply.

The messages that decide the case

The documents that move a tribunal are rarely the policy or the outcome letter; they are the exchanges around the decision. The deputy head messages the head on a Sunday evening about how to handle the investigation. Two managers in a care home discuss the claimant's sickness absence in a group chat. A nursery owner texts her deputy, before the hearing, what she thinks the outcome should be. Every one of those is a document the Presidential Guidance expects the employer to disclose if it holds or can obtain it, even where it “may harm your case”, and most of them sit on personal phones the employer can only ask about – held by people who may have changed phone or left by the time the claim arrives, up to six months later. Our register of UK tribunal and regulator cases involving WhatsApp shows how routinely such messages reach a hearing.

ComplyChat is designed to give those work conversations a home the organisation controls. Staff talk in channels the organisation runs; a mobile number verified by SMS is an identity, so bank staff, volunteers and others without a work account can take part; everyone added is told the channel is on the record and can object or leave; and messages are recorded on the server as they are sent. On paid plans, once the organisation's tenant is connected, conversations are kept under the retention schedules within its own Microsoft 365 subscription, so the organisation arrives with its own record rather than relying on screenshots the other side kept. Two limits, stated plainly: ComplyChat holds nothing sent through other apps, and it does not decide what is relevant, privileged or disclosable – that is a judgement for you and your advisers. It is not an HR case management system or a bundle tool.

A question for the next leadership or trustees' meeting: if a claim arrived tomorrow about a decision made last spring, which of the messages about that decision could the organisation produce itself, and which would it have to ask former colleagues to find?

Questions people ask

What evidence is needed for Employment Tribunals?

An employment tribunal decides on the documents in the agreed hearing bundle and on witness evidence: under rule 43 of the Employment Tribunal Procedure Rules 2024 a witness statement ordered by the tribunal “must stand as that witness’s evidence in chief unless the Tribunal orders otherwise”, and witnesses give oral evidence on oath or affirmation. The tribunal “is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts” (rule 41(3)), so emails, notes and text messages can all be evidence if they are relevant.

Can I be forced to give evidence at an employment tribunal?

Yes. Under rule 34 of the Employment Tribunal Procedure Rules 2024, “The Tribunal may order any person in Great Britain to attend a hearing to give evidence, produce documents, or provide information.” GOV.UK tells employers they can ask the tribunal to order an unwilling witness to attend, and that the party calling the witness will most likely pay their expenses.

What is the burden of proof in an employment tribunal?

It depends on the claim. In unfair dismissal, section 98(1) of the Employment Rights Act 1996 says “it is for the employer to show” the reason for dismissal and that it is a potentially fair one; in discrimination, section 136 of the Equality Act 2010 says that if there are facts from which the tribunal could decide, in the absence of any other explanation, that there was a contravention, it must so hold unless the employer shows it did not contravene the provision.

Who gives evidence first in the employment tribunal?

In unfair dismissal cases it is usually the employer, and in discrimination cases often the employee, according to the Presidential Guidance on general case management (Guidance Note 5, paragraph 8). The tribunal sets the order and timetable in each case.

What are 5 fair reasons for dismissal?

Section 98 of the Employment Rights Act 1996 lists capability or qualifications, conduct, redundancy, and a statutory duty or restriction that prevents the employee continuing in the job, with “some other substantial reason” as the fifth. A potentially fair reason is not enough on its own: under section 98(4) the employer must also have acted reasonably in treating it as a sufficient reason for dismissal.

What goes in an employment tribunal bundle?

Only the documents that will be mentioned in witness statements or put in cross-examination and that are relevant to the issues, according to the Presidential Guidance (Guidance Note 2, paragraph 13), usually in date order with every page numbered. The employer often prepares it, and where the tribunal orders electronic documents and a party is represented, the June 2026 guidance requires PDF documents and a hearing file numbered electronically from page 1, with key documents such as the dismissal letter bookmarked.

Official guidance and your next step

The procedure is in the Employment Tribunal Procedure Rules 2024, with the Practice Direction on the presentation of claims, responses and statutory appeals for how a response is filed. For England and Wales, read the Presidential Guidance on general case management (Guidance Notes 2, 3 and 5 on disclosure, witnesses and timetabling) and the June 2026 Presidential Guidance on electronic documents; Scotland has its own practice directions. GOV.UK's Being taken to an employment tribunal is the official employer's walk-through. The law is in sections 98, 108 and 111 of the Employment Rights Act 1996, sections 123 and 136 of the Equality Act 2010, S.I. 2026/954 for the six-month limits, S.I. 2026/559 for the qualifying period and compensation cap changes from 1 January 2027, and the Acas Code of Practice on disciplinary and grievance procedures. Quotations are from those documents as published on 1 November 2026.

This guide covers employment tribunals in England, Wales and Scotland, with the Presidential Guidance for England and Wales. The 2024 Rules and the sections of the 1996 and 2010 Acts cited here extend to England and Wales and Scotland only. In Northern Ireland, GOV.UK says a case “will be dealt with by the Office of Industrial Tribunals and the Fair Employment Tribunal”, under the Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020 (S.R. 2020/3). It is not legal advice: if a claim has arrived, take advice early, because the 28-day response clock is already running.

Then do one thing: take the last dismissal or formal grievance your organisation handled and try to assemble its disclosure list today – contract, policies, process letters, meeting notes and the messages about it. Whatever you cannot find, or would have to ask a former colleague for, is the gap to close before a claim does it for you.