Someone found this blog a few minutes ago with the search ‘help! anyone tell me who’s responsible for calling witnesses to the employment tribunal.’

One purpose of this blog, and the book it supports, is to help people who aren’t lawyers find their way around the employment tribunal system – so we try not to assume any prior knowledge. But once in a while a search tips us off to something we’ve assumed is obvious, when actually it’s not.

The answer to this question is that any given witness can be called by either side, or by the tribunal itself. The latter almost never happens. (In fact, I’ve never heard of it happening. If you have, please leave a comment – I’d be very interested to hear about the circumstances.)

‘Calling’ a witness involves asking them to attend the hearing, and writing down the relevant information that they can tell the tribunal in a witness statement, which you will give to the other side a week or two before the hearing in exchange for sight of their witness statements; and then at the hearing, putting them forward to give evidence when you are presenting your case. You don’t need any special permission from the tribunal to call a witness to support your case: generally it will be left to you, though the tribunal may refuse to listen to witnesses whose evidence it considers irrelevant. If there’s a case management discussion, you will probably be asked how many witnesses you intend to call, and you may be asked to summarise what they will be able to tell the tribunal about.

You can ask the tribunal to order a witness to attend, but this is rarely a good idea unless the witness is basically willing to help, but needs an order e.g. so as to be able to persuade their employer to let them take the day off work. See this post on unwilling witnesses.

See generally the posts filed under the tags witnesses and statements – and do click through to ‘older posts,’ because this isn’t the kind of material that goes out of date.

2 Replies to “Witnesses”

  1. Suppose you have asked the tribunal to call a particular person as its own witness? Will you necessarily be allowed to cross-examine them?

    In practice it will be up to the judge on the day of the hearing whether you’re allowed to cross-examine or not. But if you’ve made it clear that what you were asking the tribunal to do was call the witness as its own, and that’s what it’s agreed to do, then you have a strong case for saying that the witness isn’t yours and you should be allowed to cross-examine them. Quite a lot may depend on how clear your letter making that request was, and what exactly the tribunal said back.

    It will be sensible to raise this question at the beginning of the hearing, with any other “housekeeping” matters – that way, at least you’ll know before the witness actually gives evidence what approach the tribunal is going to take. If the tribunal insists they are “your” witness after all, and you can’t cross-examine, then it must follow that it’s open to you to choose not to call them after all.

    1. What a fantastic resource this is! So very many thanks to Naomi for producing it as without it I fear that entrance to the somewhat bizarre and mysterious world of the entire ET system would remain firmly closed to anyone trying to represent themselves or others who don’t have access to the very considerable financial resources required to be able to pay to buy a key! How any one can call the ET system in any way fair is beyond me but at least Naomi helps do something to at least try to level the playing field and give ‘amateurs’ a flicker of a chance. Thank you again!

Leave a Reply

Your email address will not be published. Required fields are marked *