A recent Employment Tribunal decision attracting significant media attention involved a worker with rejection sensitive dysphoria who was awarded £12,000 after her manager dismissed her request for reasonable adjustments to attend an office party.
Sophie Stone, who worked at the publisher MA Business, is neurodivergent and dyslexic. After asking for a quiet breakout space at the company’s summer party, she was allegedly told by her line manager, to “stop thinking outside the box.”
Stone said the comments made her feel she was being told to “mask” and behave “neurotypical.” The tribunal ultimately agreed that the remark was triggering and humiliating in light of her mental disability and that the impact could not simply be ignored.
Whenever cases like this dominate the headlines, I find that clients quickly arrive at the same practical question: if nobody recorded the comment and there were no witnesses, how can it possibly be proven?
It is one of the biggest misconceptions about Employment Tribunal litigation.
Many assume tribunals operate like criminal courts, that unless there is definitive proof, a claim will struggle to succeed. In reality, Employment Tribunals function very differently. They decide cases on the balance of probabilities, not beyond reasonable doubt. Judges are not searching for absolute certainty.
Instead, the question is far more practical: what is more likely than not to have happened?
This distinction is critical. It means the evidential threshold is lower than many employers expect and reflects the very purpose of the tribunal system, which is to resolve workplace disputes that rarely come with perfect evidence.
The Reality of Workplace Disputes
Most workplace conflicts do not occur in front of an audience. Conversations happen in meetings, on calls, in corridors, or during moments of pressure. Managers rarely intend for a passing remark to become the subject of legal scrutiny, yet context and impact can transform seemingly casual language into something far more serious.
The absence of a recording does not prevent a tribunal from reaching a clear conclusion. Employment judges are experienced fact finders. Their role is to piece together events using the evidence available and determine which version of events is more convincing.
There is rarely a dramatic “smoking gun.” Instead, tribunals step back and assess the entire picture.
How Remarks Are Actually Proven
In practice, remarks are typically established through a combination of evidential strands rather than one decisive document.
The claimant’s oral testimony is evidence. So is the manager’s denial. The tribunal then evaluates both accounts carefully. Judges look at consistency. Has the story changed over time? Does it withstand cross examination? Is it supported by surrounding facts?
Context plays a significant role. Was the employee already seeking support? Had adjustments been requested? Did the remark arise during a discussion about inclusion or workplace participation?
Contemporaneous material can be particularly persuasive. A message sent to a partner, a note written shortly afterwards, an email raising concern, or even a change in behaviour can help establish credibility and timeline.
Tribunals also scrutinise the employer’s response once the allegation is raised. A thorough and impartial investigation can strengthen an organisation’s position. Conversely, a defensive or dismissive approach can undermine it.
Where disability is involved, the analysis becomes even more nuanced. Judges do not simply ask whether the words were intended to offend. They consider whether the impact was reasonably foreseeable and whether the working environment respected the employee’s dignity.
Credibility Often Determines the Outcome
One of the most important things I tell clients is this: cases are frequently decided not because someone produced a recording, but because one version of events simply sounded more believable.
Judges are highly skilled at assessing plausibility. They examine whether an explanation makes sense in light of the evidence as a whole. They identify gaps in logic and inconsistencies in recollection.
If a claimant presents a clear, coherent narrative that aligns with contemporaneous evidence, the absence of witnesses will not necessarily weaken the claim.
Equally, employers who assume that a complaint becomes defensible simply because it is “one person’s word against another’s” may find that the tribunal is perfectly comfortable deciding whose word it prefers. Resolving precisely these disputes is what tribunals exist to do.
A Broader Workplace Shift
This decision also reflects a wider evolution in workplace expectations. As awareness of neurodiversity continues to grow, tribunals are increasingly attentive to how language, tone, and management style may affect employees differently.
What might once have been dismissed as harmless workplace banter can now carry genuine legal risk, particularly where it intersects with disability.
This does not mean employers must walk on eggshells. It does mean that thoughtful communication and emotional intelligence are becoming essential leadership skills rather than optional ones.
Managers are often under pressure. Deadlines, performance concerns, and operational demands can make conversations more direct. However, tribunals will look beyond intention and focus on impact.
A Useful Reminder for Employers
This case should not create panic, nor does it suggest that every poorly phrased comment will lead to liability. Context always matters.
However, it is a timely reminder that workplace language carries weight, especially when it comes from someone in a position of authority.
Employers would be well advised to focus on three areas.
- First, invest in meaningful manager training. Many disputes arise not from malice but from poor communication.
- Second, take complaints seriously from the outset. Early intervention often prevents escalation.
- Third, ensure investigations are balanced, documented, and impartial. The quality of the internal process can significantly influence how a tribunal later views the organisation.
Good management is no longer just about productivity. It is about judgement, awareness, and creating an environment where employees feel respected.
And for Employees
Many individuals hesitate to raise concerns because they assume that without concrete proof, their experience will be dismissed outright. That belief is often misplaced.
If something happens at work that feels discriminatory, humiliating, or inappropriate, document it while it is fresh in your mind. A contemporaneous note, a message to a trusted colleague, or an email recording your concerns can become powerful evidence later.
You do not need perfect evidence, but you do need a credible account. Raising concerns early also gives employers the opportunity to address issues before they escalate into formal disputes.
The Takeaway
When clients ask me, “But how can I prove it?”, my answer is always the same: you may not need a recording, but you do need a credible story.
Employment Tribunals are not tasked with determining what can be proven with scientific certainty. Their role is to weigh the evidence carefully and decide what most likely occurred.
Because in the end, the tribunal is not asking “can this be proven beyond doubt?” – only this:
Whose version of events do we believe?
Emma Gross
Emma was admitted as a solicitor in 2012 having graduated from the University of Birmingham and completed her LPC at the London College of Law. Emma headed up the Employment Department at her previous Marylebone firm before joining Spencer West. Keenly commercial, she has handled complex employment tribunal cases, negotiated difficult settlements and advised on fair and reasonable redundancy procedures. Emma also advises on all aspects of data protection and GDPR compliance.