Where a claim cannot be avoided and proceeds to a final hearing in the Employment Tribunal, being asked to attend the Employment Tribunal as a witness is a daunting experience for managers and members of the HR team alike.
We’ve set out some of our top tips for Employment Tribunal witness attendance and giving evidence:
The starting point is to be as familiar as possible with the case and the evidence you are providing. When agreeing your witness statement ensure that this is in your own words and that you are comfortable it covers everything relevant. Whilst you are not expected to have memorised your witness statement or the documents, ensure you read through everything in advance so it is fresh in your mind. This includes the bundle of documents prepared for the hearing, which you will be referred to whilst giving your witness evidence.
The Employment Tribunal system and the formalities as to how the Employment Judge deals with the case on the day can be daunting.
There are now three options for the format of an Employment Tribunal hearing: a wholly remote hearing; a partly remote hearing; or an in-person hearing.
If you are attending remotely you will be told to test the technology in advance. You will need a suitable quiet environment where you will not be interrupted or overheard to take part in the hearing. You will be sent a copy of your witness statement and the agreed bundle of documents beforehand. It is helpful to have a second screen that you can view these documents on whilst giving evidence.
If you are attending in person you will usually be asked to arrive before 10am on the first day of the hearing. You will need to go through security at the Tribunal building, which will sometimes be attached to the normal court or could be a separate office building. There will be a clerk assisting the judges who will assist with the administration on the day and will ask you to sign in and give your details. When you give witness evidence you will do so from a separate table which is usually in the middle of the room, facing the Employment Judge. A copy of your witness statement and the agreed bundle of documents will be available on the table. You will not be permitted to take any documents or notes with you.
Before giving your evidence you will be asked whether you wish to take a religious oath or affirm and will then be required to read the words directed to you by the Employment Judge confirming that you will tell the truth.
Witness statements are taken as read by the Employment Tribunal which means that you will not be required to read your statement aloud. Unless your representative needs to ask you any supplementary questions, for example to cover something new which is not addressed in your statement, you will proceed straight into cross examination. This means the employee’s representative will ask you a series of questions in relation to your witness statement. These are usually are leading questions, posed in a way to lead your answer in a certain direction. After cross examination has been completed, your representative will have the opportunity to ask you some follow up questions if needed, known as re-examination. In contrast these must be open questions and cannot be leading.
The Employment Tribunal is a public forum and anyone can attend the Employment Tribunal to observe a case at any time, including attending video hearings. If you have time to do so, arrange to attend the Employment Tribunal to see another case in action before your case is listed. Alternatively, you may wish to attend one of our Mock Employment Tribunal sessions to gain a sense of the witness evidence process.
Be prepared on the day to wait around. Unfortunately due to lack of judicial resource it is very common for cases to be postponed at the last minute due to lack of an Employment Judge to hear the case. If the hearing does proceed on the day in most cases the Employment Judge will require some reading time to read through the statements and documents before starting to hear the evidence. Be prepared that you may not be required to give your evidence until the afternoon of the first day, or the subsequent day.
Whilst in the Employment Tribunal hearing you should be respectful at all times, including when observing your colleagues or the employee give evidence. You should not react loudly to evidence you disagree with or indicate your displeasure by tutting, sighing etc. If an issue arises that you disagree with and feel is important, discretely pass a note or message to your representative, or wait for a break to speak to them about this. Remember you want to give a good impression of your organisation at all times.
Your role as a witness is to tell the truth. The purpose of cross examination is to highlight the weaknesses in your case. The barrister or solicitor cross examining you will be trying to undermine your evidence and make you appear unreliable. Depending on the advocate’s style they may appear antagonistic or deliberate try to provoke you to lose your temper. Do not make this easy for them, try and stay calm and collected. Speak slowly and clearly and take your time.
It is better to keep your answers short and to the point.
It is your job to give your evidence and say what you recall. It is your representative’s job to present your case. If you don’t remember, explain this or refer to the documents if you can to jog your memory. If you don’t know the answer to a question say so – don’t pretend that you do or guess something which may not be accurate.
If you anticipate being a witness and wish to gain an understanding of the Employment Tribunal process or you have any questions regarding witness evidence or the Tribunal process please contact Charlotte Farrell or Tabytha Cunningham and they’d be happy to discuss it further.
Please visit our Tribunal representation page to find out about the services we provide around Employment Tribunal representation.