WITNESS EVIDENCE: CREATING AN ACCURATE RECORD OF INAPPROPRIATE CONDUCT AT WORK: SPOT – AN IMPORTANT DEVELOPMENT

3 Responses

1. 

   Benjamin Gray · February 7, 2018 at 16:25:31 · →

   I gave it a try to see how it would handle some basic scenarios that come up in Employment Tribunal litigation. I wasn’t impressed.

   It just asked the basic “what happened in your own words”, “when, where, who and witnesses” questions. There didn’t appear to be any significant follow-up questions despite the obvious holes in what I claimed and forensic inadequacy of the answers I gave to the questions.

   For example I typed in “I was harassed” in one situation, and “I was discriminated against” in another. It didn’t pick up on the obvious point that those are legal labels not factual allegations, and failed to ask any follow-up questions for specifics of what I meant by those terms. It’s a common problem in employment litigation and HR investigations, and I’d expect software of this kind to respond to the entry of legal jargon with “what do you mean by legal term x” just as any competent HR officer or lawyer would.

   It also doesn’t show any real forensic nous. It puts out some bland statements about preserving evidence etc., but when it asks you whether you’ve told anyone else about the incident, it doesn’t ask the obvious follow-up question if your answer is “no”: “why not?”.

   I also asked for clarification to a question, and rather than answering my query it just moved onto the next question.

   In short, it does not appear to ask any meaningful probing questions as follow-up.

   From what I saw when I used it does not appear to be much more than a form with an open question asking you to set out “what happened”, “who did it”, “when” and “how did you feel about that?”. That is functionally little different to the claim form already used in Employment Tribunal litigation.

   I don’t see how it is realistically any better than emailing yourself, raising a grievance, going to the CAB or ACAS, or the existing ET1 process, and several ways in which it could be worse because of the false sense that it has somehow created a forensically adequate record despite its inability to detect and address the gaps in the evidence.

2. 

   gexall · February 7, 2018 at 18:02:20 · →

   Thanks Ben,
   I think, in part, you are doing what all we lawyers do and immediately seeking to fit a series of facts into legal labels. This is new (and it admits to being experimental) territory. The questions are deliberately open-ended so as not to “impose” a recollection. As lawyers we are fond of “follow up” questions and asking “why not”. This does not always produce the best evidence for trial. The crucial thing here is that it is contemporary and non-judgemental. However I am sure wiser people than me can respond.

   1. 

      Benjamin Gray · February 7, 2018 at 18:47:36 · →

      But the problem is that employee complaints frequently start with the legal labels without setting out the factual basis for that claim. There are plenty of claim forms and grievances that, for example, say “person X harassed/bullied me” without saying what person X actually did.

      The reason I typed in with those particular phrases was because I see a fair number of claims and grievances that are set out that way and I wanted to see if the software would be able to address it.

      I don’t see that it is imposing a recollection or contaminating the evidence to get the person to say “what do you mean by ‘harassed'”, but a necessary step in ensuring that the employee records factual evidence rather than stating an opinion.

      I’m also unclear why it would be evidentially damaging to ask an employee why they have not raised the matter with anyone else or, to put it more neutrally, why they have chosen to report online as opposed to elsewhere. It is a question that will almost inevitably be raised in cross examination and is best answered by a contemporaneous record of the reason why they chose the route they did.

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