‘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.

There is a strict rule that a witness who has started giving her evidence must not speak to anyone else about the case until her evidence has finished. Very often there will be a short morning or afternoon break or a lunch break, or even an overnight adjournment, in the course of one particular witness’s evidence. If this happens to you, in theory you can spend the time with your own side as long as you keep conversation to other topics. In practice, everyone’s head will be full of the case and it will be extremely difficult to think of anything else to talk about; much the best course is simply to avoid witnesses and advisers on your side completely until you have finished your evidence.

A common error when dealing with expert reports is to ask questions that are too general.

This normally occurs in two ways. Firstly, instead of asking questions about the client, the adviser asks, in general terms, about the situation that the client is in. For example, rather than ask about the client’s depression, the adviser asks for general information about depression and its effects. This is unhelpful. The tribunal’s interest is in how depression effects the claimant specifically, not in how it might affect other people.

Secondly, instead of asking questions addressed to the issues in the case, the adviser asks, in general terms, about the client’s condition. For example, the adviser might ask “For an opinion on Ms Jones’ depression”. This may, or may not, provide a useful report. A series of specific questions focused on the relevant legal test is far more likely to result in useful evidence.

Text messages create particular evidential problems, because unlike emails and Instant Messenger conversations they cannot normally be printed out. This makes it difficult to present them in evidence.

The tribunal will not be impressed by being presented with a phone and asked to scroll through the messages.

The sensible course is to transcribe the messages onto a single document, with details of date, time, sender and recipient; then agree this with the respondent. If the respondent refuses to agree, the transcript and the phone can then be passed to the tribunal to confirm the accuracy of the record.