Claimants often feel disadvantaged by the fact that they are the only person giving evidence on their own side, while the employer turns up mob-handed.

Don’t let this worry you. First, it’s what usually happens, and for good reason. Most ET hearings are about dismissal, one way or another. It only takes one person to be dismissed, but it usually takes at least 3 and often several more to dismiss: a line-manager, an investigator, a manager to make the decision to dismiss, another to hear the appeal, and probably at least one and often 2 or 3 HR professionals.

Secondly, almost all the people who have relevant evidence to give about what has happened in your former workplace will be employees of your former employer. Even if they sympathise with you, the chances are they will be reluctant to get involved.

Finally – it really doesn’t matter anyway. Tribunals are used to seeing a large imbalance of numbers, and they don’t decide cases by counting votes. And witnesses are at least as likely to score own goals as to advance their own side’s case. The more witnesses your former employers call, the more shots they give you or your representative at discrediting their story.

Employment cases sometimes come down to one person saying one thing and another saying something quite different.

This sometimes seems to cause people excessive concern. You will occasionally see advice that broadly says “Since it is just your word against your employer’s, you do not have a case”.

This is too pessimistic. After all, from your employer’s point of view it is just their word against yours. The tribunal is used to hearing cases where there is little to go on aside from their judgement of the witnesses’ honesty.

It is, however, very difficult to predict how such cases will go in tribunal. What will decide the outcome is the impression witnesses make on the tribunal. That is hard to know in advance.

This is true even if you are the witness and know you are telling the truth. The tribunal does not know you and will have only a few hours to form a view of your character, and that of the respondent’s witnesses. When there is little surrounding evidence to guide them, they are trying to do something very difficult, and they are not always successful.

This is hard. There is little more frustrating than being disbelieved when you know you are telling the truth. Despite this, when you are making practical decisions, such as whether to bring a case or to accept a settlement offer, you need to think about how your case will look to the tribunal. When it just your word against somebody else’s, the answer to that question is that you just don’t know. Your decisions should reflect that.

It’s really very easy: all you have to do is tell lies when you’re giving your evidence.

Treat cross-examination as a contest with your employer’s lawyer. Try to work out where each question is going before you answer it. Spin your answers to make you look as good and your employer as bad as possible. Don’t admit to having done anything even slightly wrong, however obvious it is that you did. If you’re faced with a contradiction between your witness statement and your oral evidence, or between your evidence and one of the documents, make something up on the spur of the moment to deal with it. If all else fails, fall back on woffling or saying ‘It’s a long time ago now, I don’t remember.’

Of course, if you’d rather win, you could just tell the truth on everything. You’ll end up making various admissions you’d have preferred not to – no case is 100% perfect, and the job of your employer’s lawyer is to find the weakest points of your case and exploit them – but admitting to those things candidly will improve your standing with the tribunal, not damage it. If you try to defend every point, you’ll look shifty and dishonest, and the tribunal may end up doubting your word even where you are telling the truth.

Above all, bear in mind that cases are more often lost by the losing side than won by the winner. That is to say, most hearings tip in favour of the winning party while the other party is giving its evidence.

A lot of litigants present character references to the tribunal. These tend to be short statements or letters written by people who know the litigant saying, in effect: ‘Mr Smith is a good and honest man, who certainly would / wouldn’t have….’

A common variation is statements about the other side saying, more or less: ‘Ms Jones is a nasty and dishonest person, who certainly would / wouldn’t have….’

This makes a certain amount of sense. An important part of the tribunal’s role is to decide who to believe. So the character of the parties, good or bad, is important.

But these statements are rarely, if ever, of any use.

The reason for this is simple. Even the most despicable and dishonest man can arrange for half a dozen people to write a few lines saying what a good guy they are. And even a Saint will have a few enemies. The tribunal, who has never heard of these people before, will have no means of assessing their truthfulness or their judgement. So the statements don’t make anyone’s character any clearer.

This problem might be addressed by calling witnesses to give evidence. Then the tribunal would have the opportunity to examine their truthfulness and judgement. But this adds little to what the tribunal will already consider. So far as it is possible to judge such things from witnesses they will do so with the litigant himself. There is no need to abandon this in favour of judging his character witnesses, then using the conclusion on them to judge the litigant.

Apart from anything else, it would quickly become absurd once people began calling character witnesses in support of their character witnesses.

For these reasons, character evidence should not be presented in most cases. At best it has no impact at all and it may cause harm, if only by annoying or boring the tribunal.

The exception is where witnesses can give specific evidence about previous events that follow a similar pattern to the claimant’s case. For example, in a racial harassment case, evidence that the supervisor, Mr Smith, behaved abusively to another black worker is potentially relevant. Evidence that Mr Smith is generally dishonest almost certainly isn’t.

Even when dealing with similar previous events, you should be cautious. Be sure that the evidence is really relevant and reasonably compelling. Otherwise, you risk clouding your case with arguments about other matters, that actually have little to do with it.

‘Evidence’ means any material that helps prove one side’s case or the other’s – what witnesses say, pieces of paper with things written on them (commonly known as ‘documents’), computer files, records of text messages, photographs, CCTV footage, emails, monogrammed handkerchiefs dropped at the scene of the alleged sexual harassment, bloodstained blunt instruments (admittedly these are rare in employment tribunal proceedings) – etc. etc..

It’s a common mistake to think that what witnesses say doesn’t count as evidence: as in “It’s my word against his, but there’s no evidence.” If he says you did and you say you didn’t, that’s evidence on both sides: the tribunal will just have to decide who it finds more believable.

Witness statement should not be put in the bundle of documents.

There is a theoretical justification for this, but the main reason is convenience.¹

Witnesses will often be referred to documents in the bundle and when making submissions about witness evidence you will often move from the statement to the documents it talks about.

If the documents and statements are in the same bundle this involves a lot of flipping back and forth. Much easier to be able to keep the statement open in front of you while thumbing through the documents.

1. The theoretical justification is that witness statements are a form of examination in chief, not documentary evidence.

The two sides in an employment tribunal case are normally required to disclose to each other all the documents they have that are relevant to the dispute. An important exception to this rule is ‘privileged’ documents: that is, communications with their lawyers for the purposes of legal advice (‘legal professional privilege’) and communications or documents created for the purposes of pursuing or defending the claim (‘litigation privilege’). (For a fuller explanation, see paragraphs 4.29-4.36 of the book.)

Legal professional privilege is often particularly important. Your employers may have gone to their lawyers when you first made your request for reasonable adjustments – for example – and asked ‘Do we have to do this? Can’t we just sack her if she can’t do the job any more?’ Their lawyers may have written them a long sorrowful letter of which the gist is ‘Unfortunately not: there’s this really annoying bit of legislation called the Disability Discrimination Act. You will have to go through the motions at least.’

Obviously if the Tribunal was shown this correspondence, it could help you win your case, so you’d like to get your hands on it. But normally you’re not entitled to, because it is privileged.

Employers can be careless, though, about accidentally waiving privilege. If they mention the legal advice that they have received in their witness statement, they may have waived their legal professional privilege and given you the chance to demand to see the advice. If, for example, they say something like “We took legal advice on our duties under the DDA, and we followed it to the letter,” you can ask the tribunal to order them to disclose that advice to you.

You may want to rely on either or both of the following quotes:

Paragon Finance v Freshfields [1999] 1 WLR 1183, 1188 C-D (Lord Bingham):

‘A client expressly waives his legal professional privilege when he elects to disclose communications which the privilege would entitle him not to disclose. Where the disclosure is partial, issues may arise on the scope of the waiver. Practical difficulties occur in determining such issues…. But the law is clear. While there is no rule that a party who waives privilege in relation to one communication is taken to waive privilege in relation to all, a party may not waive privilege in such a partial and selective manner that unfairness or misunderstanding may result.’

Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation, quoted by Waller LJ in Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd [2003] EWCA Civ 901 at paragraph 11:

‘Where a person is deploying in court material which would otherwise be privileged, the opposite party and the court must have the opportunity of satisfying themselves that what the party has chosen to relase from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice.’

Be prepared for a tussle if you make a request of this nature. Not all employment tribunal judges will have the rules about waiver of privilege at their fingertips, and employers and their lawyers are likely to oppose the application vigorously. So go armed with full copies of the authorities, and explain carefully why you say privilege has been waived in your case. You might also want to take copies from Phipson on Evidence (16 ed. Sweet & Maxwell 2005) paragraphs 26-15 and 26-16. (You are likely to need to get access to a law library for this. Phipson is a difficult, dense book written for practising lawyers. Even if you find it hard to understand yourself – don’t feel stupid if you do, as it is the kind of material that plenty of trained lawyers find daunting – you are entitled to assume that the employment judge in your case will be able to cope with it.)

The tribunal has power to order either party to provide additional information or answers to written questions. Requesting additional details of the other side’s statement of case (that is, the employee’s claim or the employer’s response) is often regarded by advisers as a routine part of case preparation.

More often than not, a request for additional information and/or written answers is helpful, and certainly it should always be considered (see Chapter 3 of the book for general guidance on this).

But don’t dream up questions just for the sake of having some questions to ask. Here’s an example drawn almost exactly from life. The culprit happens to be a respondent in this example, but the same principle applies to both sides.

Of: – 3. “On several occasions during this period, Mr Jones patted the Claimant on the bottom as he passed her standing at the photocopier or by her filing cabinet.”

Please explain what is meant by “patted her on the bottom.”

Please provide details of each and every occasion it is alleged that Mr Jones “patted” the Claimant on the bottom, including:
(a) where specifically on the Claimant’s anatomy she claims to have been “patted”
(b) what the Claimant claims to have been patted with;
(c) the date each incident is said to have taken place;
(d) the precise location of each alleged incident.

Questions (a) and (b) are plain daft. What part of ‘patted on the bottom’ does the respondent not understand? Clearly the questioner doesn’t have any real purpose in mind: he just thinks he ought to ask some questions. He has seen someone else’s request for additional information, and he has drafted something that he thinks looks roughly similar.

Questions (c) and (d) are not very much better, in that they are most unlikely either to elicit further information or to produce a tactical advantage for the respondent. Most likely the claimant’s reply will simply indicate that she does not know either the precise number of occasions on which this happened, or the dates on which it happened. She just knows that it happened a few times.

Sometimes a question that is unlikely to produce further information is nevertheless useful to focus the other party’s mind on the weakness of its case. But it is no particular weakness in the claimant’s case that she cannot say exactly when or how often her boss patted her on the bottom: she may quite credibly have ignored the behaviour, or tried to suppress it by a certain frostiness in her manner, before it escalated to the point that she started to think about a tribunal claim. It certainly doesn’t discredit her claim that she did not record every incident in a contemporaneous diary.

A telephone conversation, overheard in the FRU office, several years ago:

Mr Smith, you’ve told me what happened. It seems to me that basically you’re saying that your ex-boss is a bit of a git.

Now, I’ve heard what you’ve got to say, and I’ve read the documents. You know what? I agree. He is a bit of a git.

So, what’s going to happen next, is that we’ll turn up to the tribunal on Monday and they’ll hear the case. And I bet they’ll think he’s a bit of a git too.

The problem, Mr Smith, is that being a bit of a git isn’t actually against the law.

The moral of the story is that tribunals are there to decide whether the respondent has broken the law, not to make general judgements about the parties involved.

Often litigants (on both sides) will spend a lot of time and effort throwing mud at each other about their business practices; quality of work; management decisions; criminal records; sexual morality and even personal hygiene.

Sometimes this is relevant. A capacity case, for example will often revolve around the claimant’s competence in their job. And if the claimant’s case is that the problems had been caused by inadequate support by his management their decisions will need to be examined. In a whistle-blowing case you may spend a good deal of time considering the respondent’s efforts to avoid their obligations to Her Majesties Revenue and Customs or the Health and Safety Executive.

Even if it is not strictly speaking relevant, mud slinging can be effective. A tribunal who feels that one side has been hard done by or mistreated is likely to be influenced by that impression. Trying to make yourself look good at the expense of the other side is part of the game.

But the old adage about it being hard to throw mud without getting some of it on you applies. Irrelevant accusations or criticisms will almost always do you more harm than good. Making accusations without evidence makes you look paranoid.

In general, therefore, it is sensible to keep all blows above the belt. Always remember that your aim is to prove your case, not prove that your opponent is a bad sort.

Suppose that in the course of the hearing your client realises that an important answer given by one of the respondent’s witnesses can be proved wrong by a document that she has at home, but that she has not previously shown you or mentioned. She goes home and looks out the document and brings it the next day. When you look at it, you think it is extremely helpful to her case.

What do you do? Can you use this document?

The first thing to note is that if the document is relevant, it ought to have been disclosed to the other side before the hearing began and included in the bundle. It has to be disclosed now, so give a copy to the other side’s representative, with apologies for not having disclosed it earlier, at the first opportunity. Don’t make excuses at this point, but find out from your client why the document was overlooked previously so that you can be ready with your explanation for late disclosure in case the tribunal asks you.

The next thing is to decide how to deal with the new document in evidence. If the witness in question is still giving evidence, you should just be able to show him a copy of the document and ask him questions about it.

If the witness in question has finished his evidence, you may wish to have him recalled so that you can ask some further questions. Tread carefully at this point, though, and be ready for a tussle with the tribunal: the Chairman will not be keen to bring witnesses back after their evidence has apparently finished. You are on the moral low ground to the extent that the document should have been disclosed earlier. If there is any risk that recalling the witness will extend the hearing so that it needs an additional day, think hard about how important it is to be able to ask him about this document. Can another of the respondent’s witnesses sensibly be asked to confirm that, in light of this document, his evidence must have been mistaken? If the hearing is extended because you insist on recalling a witness to deal with a document that your side should really have disclosed earlier, you are likely to face a costs application.

Similar considerations apply if your client produces a document that she says proves she is right on an issue she was given a hard time about in cross-examination. You may want to recall her after the end of her evidence to explain the document, but avoid this if you can: you may be able to make your point about the document just as well, if the respondent’s evidence is yet to come, by cross-examining one of their witnesses about it.