Tagged: evidence

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Timing is everything

The timing of events is important circumstantial evidence in the employment tribunal. One of the reasons that preparing a chronology is so useful is that it helps you find patterns that support your case.

The classic example of this is a dismissal, where an employee has been dismissed 48 hours after announcing her pregnancy. The tribunal is likely to take some convincing that this is a coincidence. Similarly, if someone makes a protected disclosure and dismissed immediately afterwards. the tribunal will be sceptical of claims that there were long-standing capability problems.

In such cases, you will want to emphasis the timeline of events. Your cross-examination and submissions should draw the tribunal’s attention to the pattern, while undermining the respondent’s attempts to present other explanations.

But this sort of evidence is circumstantial and not definitive. It is a mistake to think that just because one event happened shortly after another, the first event must have caused the second.

If, say, the pregnant employee is dismissed along with 50 of her co-workers and the employer produces compelling evidence of a redundancy situation, much of the probative value of the timing disappears (although you would probably want to look carefully at why she was selected for redundancy).

For math / philosophy geeks, the principle is illustrated below:

Correllation

Comic by xkcd

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Drawing out the evidence

During a hearing, evidence is presented in a fairly structured way. Each witness gives evidence and is cross-examined. Witnesses tell the story in chronological order and then are cross-examined in roughly the same way.

This is a good system for hearing evidence. The logistical challenges of doing anything else would be considerable. Hearing evidence on an incident by incident basis, with witnesses stepping up and down in rapid succession, then returning when the tribunal moved onto the next part of the case would quickly create chaos.

The disadvantage of the system is that a lot of what witnesses say when giving evidence is not terribly important. Important answers can easily get lost in the crowd. Also, where more than one witness is giving evidence about a subject, the relevant evidence can get spread out and hard to follow.

Submissions, however, are an opportunity to draw the tribunal’s attention to patterns that are not clear while evidence is being given.

There are a number of ways of doing this. Below are two examples.

Collecting a single witness’ answers on a particular issue

It is notable how little Mr Smith could remember on certain key issues.

In cross examination he was asked:

  • “Did you speak to HR, before writing to Ms Jones?” He replied, “I don’t know. I might have.”
  • “Did you read your company’s guidance on disciplinary procedures before your meeting with Ms Jones?” He replied, “I don’t remember.”
  • “Did you talk to anyone about how to run a disciplinary procedure?” He replied, “I think I did, but I can’t say for sure.”

Even taking his evidence at its strongest, it is plain that Mr Smith has no clear recollection of taking any steps to establish his responsibilities in running a disciplinary procedure. His statement at paragraph 5 of his witness statement that “I had not run a disciplinary process before, but I took steps to make sure I understood what I had to do” is simply not credible.

Collecting a number of witnesses’ answers on an issue

It is apparent from the evidence of Gubbin’s managers they were confused about who was responsible for dismissing Ms Jones. Mr Smith, Mr Green, Mr Adams and Ms Watson were all asked who made the final decision.

  • Mr Smith said “It was a HR issue, so Mr Adams would have done the final sign-off.”
  • Mr Green said “I’m not sure, but I expect Mr Smith would have had the final say. He was her direct manager.”
  • Mr Adams said “That would have been Ms Watson. She was the senior manager.”
  • Ms Watson said “I was advising, but ultimately it was Mr Adams who made the decision.

The technique is the same in both examples. By extracting important parts of the witnesses’ evidence in relation to a single issue and presenting them together, the point becomes obvious.

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What should be in a witness statement?

The short answer is ‘All relevant evidence that a witness can give.’

For the long answer, keep reading.

‘All’

A witness statement should be complete. You cannot rely on a tribunal’s indulgence to expand on what you’ve said or to ask follow up questions of the witness. Even if they do let you do this, it is better to put the information in to begin with. It will be one less thing to worry about, and you can present it in an organised, thought-out manner.

The exception to this is when new issues are raised by the other-side in their witness statements.

Occasionally, this will be something sufficiently significant or involved that it is sensible to put in a supplementary statement. But often, a quick question in examination in chief is better. The form is usually something like “In his witness statement, Mr Smith says that the company handbook was available on the staff notice board. What do you say about that?”

Such questions should be asked sparingly, when you have something to add to the original evidence. Is it not necessary to go through all the the otherside’s statements, saying where they are wrong. If, for example, your witness says in her statement statement that she agreed to work for £100 per day, it is pointless to ask “Mr Jones says in his statement you agreed to work for £50 per day. What do you say to that?” The answer is obvious.

‘Relevant’

A witness statement should include everything relevant, and nothing irrelevant.

This is much easier to say than to do. The starting point is to have a clear list of issues that the tribunal will need to decide. Then put in all the evidence that will help them do so.

There is no rule about how long a statement should be. It will vary from case to case and witness to witness. However, it will normally be proportinate to the length of the hearing. If you have a 30 page claimant’s statement for a 2 hour hearing, it is a sign that something is wrong. Similarly, if you have a 3 page claimant’s statement for in a 10 day discrimination case, the chances are that it does not go into enough detail. Bear in mind that this is general guidance and there are always exceptions.

‘Evidence’

The witness statement is for evidence, rather than submissions. It should tell the tribunal what has happened, rather than tell them what to think about it. The latter is something for submissions.

Having said that, a witness statement should be organised in a way that makes is easy for a tribunal to understand what it is you will be saying. If, after all the evidence is in and you are about to start making submissions, the tribunal has no idea what you will be saying, something has gone badly wrong.

‘That a witness can give’

Occasionally you will see a witness statement that sets out the evidence of other people as well as the witness giving it. For example, it may say something like ‘Ms Smythe, the HR Manager, will say that …’ This is pointless. Ms Smythe should have her own witness statement setting out what she is going to say.

It is important not to confuse this point with the issue of ‘hearsay evidence’. Hearsay is a rule of evidence from the criminal and civil courts. The precise definition is complex, but in broad terms it is evidence from a witness about what somebody else has told them.

For example, if Mr Sampson gives evidence that Ms Brook told him that Mr Jones told her that ‘nobody sensible would appoint a woman who might get pregnant’ then Mr Sampson is giving hearsay evidence. He is one step removed from the incident and can only tell the tribunal what Ms Brook told him.

Hearsay evidence is permitted in the tribunal and is quite common. It is, however, normally better to have direct evidence. If, in the above example, it was possible to call Ms Brook, that is more likely to convince the tribunal. Of course, by the time you get to tribunal Ms Brook may have regretted her candour and refuse to assist.

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Strength in numbers

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.

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One person’s word against another

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.

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How to lose a good case

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.

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Character statements

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.

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What counts as evidence

‘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.

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Bundling witness statements

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

There is a theoretical justification for this, but the main reason is convenience. ((The theoretical justification is that witness statements are a form of examination in chief, not documentary evidence.))

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.