ยท Written by

Witness statements have to be true

This may seem obvious, but it is surprising how often it gets forgotten.

The problem seems to be a failure of communication between advisers, for whom the process is routine, and witnesses, for whom it is normally a complete one-off. Advisers think it’s obvious that the witness must be satisfied that the statement is all true: after all, it is a document that says at the top ‘statement of Joe Bloggs’ and has a place at the bottom for Joe Bloggs to confirm that the statement is true and sign it. Of course Joe Bloggs won’t sign it unless he is convinced that it is true.

But of course nothing of the sort. The currency has been devalued. An employment judge might throw up his hands in horror at the idea that a witness has sworn to a statement that, actually, he hasn’t bothered to check properly – but the same employment judge has undoubtedly ticked boxes confirming “I have read and accept the terms and conditions” half a dozen times in the last month, when what he really meant each time was “I can’t be bothered to read the small print, but I’m willing to accept it on the gamble that there’s nothing too outrageous in it.”

A witness statement is completely different. If you are a witness, you mustn’t sign your statement unless the confirmation at the end that it is true really does mean what it says. If your adviser has drafted something that puts an inaccurate ‘spin’ on what you’ve told them, make them correct it. If they’ve stated something as definite that you’re not sure about, change it so that the statement makes it clear you’re not sure. Putting your evidence in writing in a clear and logical order is your adviser’s job, if you’re lucky enough to have one; but making sure your evidence is correct is yours, and no-one else’s.

Advisers can sometimes cross the line between presenting your evidence clearly and persuasively (which is perfectly legitimate) and telling you what to say (which is not). If there’s a tussle over your evidence, it’s one you need to win; and if you come under explicit pressure to give evidence that is not true, sack your adviser.

The best way of grasping how important this is is to understand a bit about what it’s like to be cross-examined. Quite often there’s a sequence of questions that goes something like this:

Q: You have just sworn that your statement is true haven’t you?
A: Yes.
Q: And you approved and signed it a couple of weeks ago?
A: Yes.
Q: You wouldn’t have signed it without checking carefully that it was true?
A: No: [Actually – for the reasons given above – this is nonsense. All the same, 99 witnesses in a hundred will give the ‘right’ answer to this sort of question.]
Q: And presumably you’ve read it again recently?
A: Yes.
Q: So if there was anything in it you weren’t confident about, you’d have corrected it before you swore to the tribunal that it was true?
A: Yes.
Q: So when you say at paragraph 12 of your statement that it was Tuesday 5 May that Sheila shouted at you in front of the whole office, you’re sure that’s right?
A: Yes.
Q: And you’d remember that clearly, because it was the first day back after the Bank Holiday?
A: Yes.

This is ominous. The respondent’s representative wouldn’t be working so hard at confirming your evidence about the date on which you say Sheila shouted at you unless she was pretty sure she could prove you wrong. Her aim is to prove you a liar, rather than merely mistaken or careless – hence the emphasis on how sure you are of this bit of your evidence. You are almost certainly about to be taken to a page in the bundle that proves – or seems to prove – that one of you wasn’t in the office at all on Tuesday 5 May.

That’s why it is so important that your statement is your statement. Read the first sentence in your statement, and imagine the respondent’s representative taking you to it and asking you “Are you sure of this?” If the thought gives you a sick feeling, delete or rewrite the sentence. Repeat for every sentence in your statement. When you’ve finished, and made all the changes you need to make, you can sign your statement: not before.

6 comments

  1. sheila kelly

    I would really like some advise on wheather a witness statement would be classed as void at a tribunal if the person had not signed his or her name at the end of their witness statement.Iwould very much appreciate ifyou could let me know.Many Thanks S.Kelly

    • Naomi

      No. It’s conventional to sign witness statements, and some tribunals will insist that if you present unsigned copies of your statement, you sign them then and there. But there’s no real magic in the signature as long as the witness is present to affirm or swear that his or her statement is true. If you want to present a statement from a witness who can’t come to the hearing, you certainly do need to get the statement signed – but a witness who doesn’t come to the hearing is very rarely of much use anyway.

  2. Norman Webber

    I would like to know if an employee signs a statement about an action already taken, and then an employer later adds further comments that change what has been written to imply agreement to something not originally agreed, is this an offence.

  3. ellen dacey

    at my ET in june 2015 (unfair dismissal) i (litigant) on cross examining the complainant SD i took her to the allegations (this was in the form of an email from the IO and not from SD) she on looking at the email stated ‘these are not my allegations’ and later went on to say she was not the complainant and didn’t know why i was dismissed (8.8.14). SD’s ET statement lists the allegations with her name attached to the 5 allegations (upheld as gross misconduct) – HER STATEMENT WAS NOT SIGNED OR DATED…. Why didn’t judge question her evidence and/or her statement? Either her statement (written by solicitor) lied or SD lied under oath – what do i do about this situation?

  4. Mr C

    Unfortunately lying in Tribunals by management witnesses is wholesale and largely tolerated or ignored by employer friendly judges. Until proceedings are allowed to be recorded I cannot see an end to this. Best not to bother.

  5. ade

    At my ET case, the claimant made a witness statement that HOME OFFICE has not yet made a decision about her Asylum Application, when in fact this decision had been made 19months previously and she was awaiting deportation because Deportation Order was served on her at the same time. She won the case. Is the untrue statement as to hiding failed asylum application enough for automatic appeal? she had obviously lied.

Post a comment

You may use the following HTML:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>