Digital Evidence in the Workplace

Do not trust your manager or any verbal agreements! Only trust things that you have in writing.

I have been working in Digital Forensics and Digital Evidence for almost 15 years now. When it comes to employment cases, I am involved in investigating things after something has gone wrong, either for the employee, the employer or both.

This article is about how you can use digital evidence to protect yourself from a line manager who abuses their position, an employer whose internal processes are not fit for purpose, or their HR do not understand digital evidence (or any form of evidence for that matter).

Having trust in your work environment is paramount. It helps the organisation work better, make decisions faster and more efficiently, and act on operational as well as personal issues. That is the theory.

In reality, no matter how good your colleagues are, there will come a time, when someone is not going to play nice. There are many reasons for this kind of behaviour and I can certainly not list them in the confines of a Linkedin article.

Talking things over with your manager and agreeing on issues, both those that affect the organisation and those that affect you, directly, sounds good. But what happens when your manager changes? What happens when your manager says "I never agreed to that" and you have nothing in writing?

Emails/Messages/Private Messaging

Anything that you deal with at work should be in writing and using the proper media; those provided by the company, thus will be considered as unadulterated forms of evidence.

When you discuss business issues, especially things that concern you, like an agreement for a promotion, training paid by the employer or extra payments for extra work, you should make sure that you keep these conversations on record.

Private messages in your WhatsApp, Messenger or Signal, may only complicate things. You may even be asked why you had these conversations on a private device and be victimised even more.

If you are afraid that some of the exchanged messages may be deleted by the other party, then you should take reasonable steps to preserve them. Keeping screenshots of conversations will allow you to request their recovery from IT if the other side has managed to delete these for everyone. (this would depend on the platform used and the time elapsed since the messages were sent).

WhatsApp or SMS?

Everybody today is using WhatsApp or something similar. It is convenient and it uses your data allowance or WiFi and it is great when it works.

The problem when it comes to presenting digital evidence to HR is that these are people who have no way of verifying the existence and/or provenance of these message exchanges. The only way to do that is by forensically examining electronic devices. For GDPR issues they will not touch your device (or the other side's for that matter) and thus fail to authenticate things.

The other side can always delete conversations and pretend that this was a setup.

Sending SMS instead of using other messaging services, solves this problem. SMS messages are recorded by your mobile phone provider. This means that they will be on record at least for one year. During that time, you can get a record of these messages. Even if the provider cannot provide you with the content, they will provide you with the metadata: the actual sending and receiving information. This can then be used to match the messages on your mobile phone and verify their validity.

If in doubt (and before requesting an expensive copy of your data) seek the advice of a digital forensics expert.

Will HR understand this piece of evidence?

Chances are that some of them might. Especially if the evidence is recovered by an expert and followed by a forensic report, sent to them by your solicitor.

If they do not, and if you think your case merits taking things to an Employment Tribunal, then it is more likely than not that the Tribunal will take that evidence at face value, once properly presented.

NOTE: If you decide to take that step to resolve things outside the company, you should seek legal advice first. This will allow you to make an informed decision on how this will affect you financially, and emotionally and how it will affect your relationship with your employer and of course your career.

Language

If you and your line manager are (like me) originally from another country, then you should never use any other language, than the official language of your employment. You will be tempted to do so with someone with whom you share common cultural backgrounds and language. If you work in Scotland for example, the business language (unless otherwise stated in your contract) is English. Any business discussions, any agreements, and any issues should be discussed in English.

Discussing things in your language complicates things. It means that conversations will need to be translated and things need to be put into context and that will make things more complicated, and more ambiguous and that will unhinge any form of a formal resolution; especially when the Human Resources staff or anybody else involved in the process, are not properly trained or understand the ramifications of what they read.

Formally ask HR before you take any action.

Something I learned from my Army times. When things go wrong and people want to do things "by the book", make sure you get a copy of the book and you understand it better than they do.

One of the best ways to ensure you are not blamed or victimised at work is that before you do anything that is unknown until that moment, you should send an email to Human Resources. Once you get some clarification, act on the advice you received and keep a digital record of said advice. Nobody will be able to say you did something wrong; if they do, you can always refer them to HR's advice or take that to an Employment Tribunal.

What about private meetings?

Private meetings and conversations are needed. If you are in a meeting with many other colleagues, then there are witnesses to what has been said and probably there will be some minutes.

If you have a private meeting with your manager and you agree with something, then it is good, to sum up what was said and agreed in an email, send it to your manager and ask them to confirm that this is an accurate depiction of your meeting and what was discussed in it. Even if they do not reply, you will have a written record of what you understood to have been agreed. If they do not dispute your version of events, then you have something to show if something goes wrong. If they do dispute it, then you know where you stand, and that you should not really hold your breath on their promises.

An email is as good a piece of digital evidence as anything else. If you are part of meetings that are recorded (i.e. in Microsoft Teams) then keep a copy of the recording. They are not staying there forever and you never know when they will be removed by the other side.

What if my manager is also my friend?

Working with someone you consider a friend, certainly has its appeal. It does make going to work a better day-to-day experience.

The problem here is that things can go wrong. When this happens, your "friend" will look at their own interests and their own agenda. Then they will look at the organisation and your interests will be the last on your list.

You expect that a "friend" at work will not lie about an agreement you had. But they will. They will lie, and if you dispute that, they will lie even more to protect themselves and their original lie, or their failures as a manager.

Part of the problem of course lies with the organisation. People are promoted or called "managers" or "line managers" without any business and managerial training or experience, but based on other factors.

What is considered "evidence" by HR and Employment Tribunals?

One of the main differences between Human Resources and Employment Tribunals (or Employment Courts, Industrial Tribunals, or whatever they are called in your country) is that HR people are administrators and not trained litigators or judges. They do not know how to process evidence. Even worse, in some cases they appoint other employees as "investigation managers", people who are even more irrelevant. To make things worse, some employers allow you to have a union rep or colleague with you during a hearing but not a lawyer! Yes, that is true: it does happen and it is done in writing, as part of the organisation's processes.

Personally, I never understood how an employer is allowed to stop an employee from having legal representation. I understand why they do it, I just do not understand why it is allowed and how they can get away with it!

In contrast, when you go to an Employment Tribunal, digital evidence will be prepared in a court report, and your lawyer is going to argue that, together with their expert, to a judge or whoever is presiding the tribunal.

Overall, the chances that digital evidence will be used properly and be understood correctly, increase exponentially when things follow a formal litigation path, rather than internal procedures.

Speak to an employment lawyer before you take further action. But no matter what, always protect yourself, your interests and your family from bullies.

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Malcolm Cameron Malcolm Mackay WS Alison Stone CIPP/E, CIPT, FIP Laura Irvine Douglas McLachlan Vivien Ho Alasdair Gillies Paul M. Musab Hemsi Cary Hendricks