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Employment Law: Evidence Against an Employer

If an employee decides to take legal action against their employer, they will need evidence supporting their assertions. The best time to obtain this evidence is before leaving. However, caution must be taken in how evidence is obtained. The basic principle is to respect the ownership of evidence, which can be difficult in a digital world.

Company e-mails and other files (physical and electronic) belong to the employer. This is true even for e-mails addressed to the affected employee. Employees do not have a right to take this information in any form.

Taking notes is normally permitted. The most important information to capture in such notes is; the date, the persons involved, and a summary of the topic. This will allow later recovery of the evidence in a process called discovery, which is a court order that requires the employer to turn over information pertinent to a case.

If evidence is obtained properly, with court authority, it can be used in a legal proceeding. If evidence is obtained improperly, it normally cannot be used. Tragically employees may make the most compelling evidence unusable because they took the most outrageous items.

Each jurisdiction has a complicated system concerning rules of evidence that goes far beyond this basic principle. Discussing it meaningfully in this format is not possible. The important points to remember are;

  1. Think about what evidence supports your position
  2. Respect ownership

If you are planning an action, it may be smart to discuss the case with an experienced attorney, including evidence, before leaving. If you find it necessary to leave or are forced to leave, this may put you in the best possible position. Please contact us if you would like to discuss further.