In this edition of Joelson’s Employment Tribunal Tactics and Tips series we look at what factors should be taken into account when deciding who to call as tribunal witnesses and how to prepare for giving evidence at the final hearing.
It will usually be fairly clear as soon as an ET1 claim form is received who the relevant witnesses will be. However, on other occasions this may be more difficult to determine, especially where you know that certain witnesses will not come across as being credible in evidence.
Preparing a ‘cast list’ of possible witnesses can helpful, setting out which witnesses have relevant knowledge or information relating to which issues in dispute. Once this list has been compiled, employers should assess who out of the list is best placed to give evidence on the employer’s behalf – you are looking for individuals who will come across as being credible and coherent.
Employment tribunals prefer the number of witnesses to be kept to a minimum. There is no need to have two witnesses attesting to the same facts where one will suffice. The evidence each witness shall give should be essential and helpful – if one witness is perhaps going to come across as being unhelpful to the employer’s defence (intentionally or unintentionally), employers should carry out an assessment to see if there is anyone else who can give that evidence. Even strong defences fail at final hearing where on the day, the employer’s witnesses come across as being unreliable or untrustworthy. This if often down to nerves or due to the witnesses not being fully prepared and familiar with their own statements or the employer’s defence.
Once you have decided who you wish to call as witnesses, witness statements will have to be produced for each individual. These should be kept as succinct as possible and we can help prepare these. It is imperative that each witness is familiar with and ‘owns’ the content of their statement which must be 100% accurate as otherwise it will be open for the employee to discredit them in evidence.
Throughout the employment tribunal process, there are numerous opportunities to reassess the strengths and weaknesses of a claim. If at the stage of preparing witness statements it becomes apparent that the evidence will not allow you to successfully defend the claim, you may wish to consider whether it would make more sense commercially to settle the claim rather than it proceeding to the final hearing (where costs will increase).
As specialist tribunal defence solicitors, we regularly advise clients from receipt of claims and throughout the employment tribunal process on the merits of them defending and whether it would be more cost effective to try and settle a matter.
Another important considerations when weighing up defending a tribunal claim are the management time out of the business required by witnesses in preparing witness statements and in attending tribunal to give evidence and the potential reputation risk if the claim proceeds to final hearing as the employment tribunal hearing is very much a public affair.
If the decision is to proceed to final hearing, each witness should clearly understand the issues in dispute. This will enable each witness to focus on the exact purpose of their evidence. Whilst we can explain the significance of a witness statement and answer any questions that witnesses may have, we cannot coach witnesses (i.e. by telling them exactly what to say and how to answer questions put to them).
As well as each witness being familiar with their statement, it is also important for them each to know what day(s) they will be required at the tribunal hearing. They should also be briefed on the general tribunal process and format of the tribunal hearing. Any uncertainty about the detail of evidence being given will quickly become apparent at final hearing and may have an adverse impact on witness credibility. It is also advisable for each witness to also be familiar with the employer’s other witness statements and have a good handle on what documents relevant to their evidence are included in the bundle hearing. It is possible that during cross-examination, witnesses will be asked questions about documents and be asked to point them out in the hearing bundle.
The case management order will usually set out a time frame for when witness statements should be exchanged with the employee. It is common for statements to be exchanged simultaneously to prevent one party from gaining an advantage from seeing the other party’s statements (and potentially amending) before submitting their own.
Tactically, employers need to consider whether they want to push for exchange of statements as early as possible in the employment tribunal process. The benefit of having the date for exchange of statements early on is that it will allow you to reassess the merits of your defence in light of that evidence. The downside of early preparation of witness statements is the management time involved and the legal fees involved.
If you require assistance in assessing a tribunal claim you have received or in defending such a claim the specialist tribunal defence team at Joelson can help you. Please speak to David Greenhalgh on 020 7580 5721.
This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.
“For me, it’s the commercial creativeness and ability to think outside the box, which makes the employment team at Joelson a joy to work with.”
Meera Ferguson, Head of Legal