Exchange of witness statements etc.

Employment tribunals tend to order that witness statements are to be ‘exchanged’ on a certain date. What is implicit in this is that there will be simultaneous exchange, so that neither party gets a preview of the other side’s statements before it writes its own. For this reason it is normal to agree with the other side to exchange by fax or email at a particular time of day. If you feel anxious about this, you may want to telephone the respondent or its adviser when that time comes to check that they are ready to exchange. The only way to be completely sure of simultaneous exchange is to agree to exchange at a meeting, but this is rarely if ever done – it is too inconvenient, and the advantage in seeing the other side’s witness statements before you write your own is minor anyway.

Written submissions may be treated the same way, although some tribunals will order written submissions to be dealt with in sequence, in the order that oral submissions would be made. Simultaneous exchange of submissions is even less important than simultaneous exchange of statements, because by the time submissions are drafted, all the evidence has been given and the issues should be clear. Each side will already have a pretty good idea what the other is going to say.

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