Tagged: witnesses

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The mystery witness

Sometimes employers will dismiss on the strength of information from someone they are not prepared to identify – let’s call him or her X.

What can you do about that? Can you make them call X to give evidence?

The main answer is that you probably don’t need to. Remember that what the ET is mainly interested in, in a misconduct dismissal case, is not whether you actually did what you were accused of – but whether your employer genuinely believed, on reasonable grounds and after an adequate investigation, that you did what you were accused of. So they don’t need to know how convincing they think X’s evidence is. They need to know things like what questions X was asked, what X’s answers were, whether you had a chance to challenge what X said, and so on. That doesn’t necessarily mean that you had to be given the opportunity to question X yourself, or have him or her present at the disciplinary hearing: but you do need to have known in detail what had been said against you, and normally also who said it, so that you can make any points you might want to make in your defence. If X is in fact someone who has a grudge against you, you’d want to be able to tell your employer about that at the disciplinary hearing. If you weren’t able to because you didn’t know who X was, that may make the dismissal unfair.

You can make those points perfectly well without having X present at the hearing. In fact, you might be able to make them better: if X turns up, and turns out to be someone who has no reason to have a grudge against you and whose evidence is convincing, your employer will be able to say ‘Go on then. Make the points you’d have made at the disciplinary hearing now.’ If you’ve nothing much to say, your employer can then argue that even if it wasn’t fair not telling you who X was, they’ve now demonstrated that it wouldn’t actually have made any difference if they had told you.

Of course, if you’re convinced that X doesn’t exist at all, you might want to press your employer to call them, in order to demonstrate that. You could write to them and say ‘I don’t think X exists, and that’s what I’ll be telling the ET at the hearing. So if you say he or she does exist, you’d better call them to give evidence.’ And then if there’s still no X at the hearing, you can show the tribunal your letter, and ask the tribunal to conclude that X doesn’t exist.

You could also use the tribunal’s power to direct a party to give written answers to questions to find out who X is: ask the tribunal to order them to tell you X’s name and address. See ¶¶3.26-3.28 of ET Claims for how to do this.

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Do I have to be a witness?

It depends.

If your former colleague or former employer wants you to attend, and you don’t want to, you don’t have to unless the tribunal orders you to attend. The tribunal is very unlikely to make an order unless one of the parties asks them to. If they do make an order, it doesn’t mean you have to give the party that has asked for the order any assistance in preparing their case: you don’t have to talk to them beforehand if you don’t want to, or give them a statement of your evidence.

On the whole, parties tend not to ask the tribunal for witness orders unless the witness is basically willing to attend anyway. That’s because a reluctant witness normally won’t have provided a witness statement – so no-one knows for sure what they are going to say until they say it to the tribunal. That means calling them is risky. (There’s a bit more about this here.)

The situation is a bit different if it’s your current employer who wants you to give evidence. They can’t actually force you to do so – but they can make your life miserable if you refuse, and they might even discipline or dismiss you. So you might find yourself in a position where you’re under a lot of pressure to give evidence.

If your employer wants you to say something that isn’t true, you should stand your ground anyway: telling lies to the tribunal under oath is perjury, which is a serious criminal offence. If you’re dismissed for refusing to do this, you should certainly complain of unfair dismissal; in some circumstances, you might also be able to complain of discrimination by way of victimisation.

If your employer wants you to tell the truth, but you’d just rather stay out of it, you will have to make a judgement about what they’re likely to do if you refuse, and how strongly you feel about not getting involved. But bear in mind that the more closely you were involved in the events giving rise to the claim they want you to give evidence about, the more likely they are to be able to justify disciplining you for refusing to obey a lawful management instruction.

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Outnumbered

If you arrive at the tribunal on your own, or on your own apart from a representative or a family member, it can be quite intimidating to see 2 or 3 managers and half your former employer’s HR department there on the other side.

Try not to take this personally, or let it worry you unduly.

First, even if all of these people are proposing to give evidence, it doesn’t necessarily put you at a disadvantage: witnesses lose cases more often than they win them – by wheeling out a lot of witnesses, your employer may actually be improving your chances.

And if several of your former colleagues are there just to observe proceedings, it can feel like a calculated attempt to intimidate you. But it probably isn’t: more likely, it’s just that it’s useful for them to see what the process is like. For most managers and HR people, ET hearings are both a fairly rare event, and a stressful one. It’s useful for managers to see their colleagues having to defend their decisions under cross-examination in a case in which they are not directly involved: for one thing, they may learn things that make it less likely for their decisions to be challenged in tribunal in the first place; and if they do ever have to give evidence in a tribunal hearing in the future, at least they will have seen the process before, so it won’t be completely unfamiliar.

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When giving evidence…

… point your feet at the employment judge.

Witnesses are constantly reminded to address their answers to the tribunal. When you’re being questioned by your employer’s representative, or your own, the natural thing is to give your answers to the person who has asked the questions. But it’s essential that the tribunal hears your evidence – and they are probably sitting further away from you than the respondent’s representative. So if you address your answers to them, everyone should be able to hear.

The trouble is, it feels odd – and actually quite rude – to turn away from the questioner and give your answer to someone else, and witnesses constantly forget to do so. Sometimes they forget so often that the tribunal gets a bit sharp with them, which adds to the stress of an already stressful situation.

This is where your feet come in. If you keep your feet pointed at the employment judge, you’ll have to twist slightly to look at the representatives, and the natural tendency to untwist as soon as possible will help you keep your answers directed to the panel.

(This isn’t original – I can’t remember where I heard it first, but it’s a good tip.)

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Follow up on Witness Statements

A few months back, Naomi wrote about Mehta v Child Support Agency, where President Underhill suggested that it was not always necessary for witnesses to read their statements aloud.

As Naomi suggested at the time, the case does seem to have caused a shift in tribunal practice. Although not the invariable rule, it has become much more common for statements to be read by the tribunal over a break in proceedings and, therefore, for cross-examination to begin almost immediately after a witness is sworn in.

This is worth noting for three reasons. First, tribunals are stressful, and it’s easy to be thrown if things don’t proceed quite as you expect.

Second, if you want a witness to read part or all of their statement, you need to be ready to explain why it’s necessary.

Third, if you’re used to cross-examining witnesses after they’ve read their statements aloud, you may have become reliant on the time that takes to catch your breath, shuffle your notes, remember who this witness is and where the fit into the story, re-read some of the documents they refer to, take a short nap, and so on. Not having witnesses read their statements aloud means everything moves along at a brisker pace, and you’ll have to cross-examine one witness straight after another .

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Witnesses

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.

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Cut-and-paste witness statements

Sometimes you find identical passages in two (or more) of the respondent’s witness statements. It’s obvious what has happened: whoever has drafted the witness statements has either cut and pasted passages, or – more likely – used one statement, edited and partly rewritten, as the basis for another.

Is this allowed? Does it mean the witnesses have colluded? Does it mean some or all of them must be lying?

Yes, sort of, and no.

Yes

It is perfectly permissible for all the statements to be written by one person. If solicitors are acting, drafting statements will be a normal part of their job. The tribunal won’t be surprised or shocked by evidence that the witnesses didn’t write their own statements. Drafting the statement and providing the information that goes into it are two different jobs, though: the witnesses probably won’t have done the former, but they certainly ought to have done the latter. (See further Witness statements have to be true.)

Sort of

The respondents’ witnesses will almost certainly have discussed their evidence with their representative and each other, and it is possible that they have reached a consensus on things they initially disagreed about. That’s ok: no-one expects witnesses on either side to be kept isolated from each other. So in this limited sense, yes: certainly the witnesses on the other side will have ‘colluded.’

No

It doesn’t mean the witnesses have to be lying. Collusion in the bad sense – that is, all getting together and agreeing to tell the same lie – is not allowed, of course. But the appearance of identical passages in different statements is much more likely just to mean that the solicitor has taken a bit of a short-cut when setting out the evidence of the different witnesses. The witnesses all agree broadly what happened anyway, and the solicitor hasn’t bothered to draft statements that reflect the subtle differences between them. As long as they have all read their statements and satisfied themselves that they are true, that’s legitimate.

Where does it get you?

What this means is that simply pointing out that the exact same passage recurs in two or more of the respondent’s statement won’t score you a direct hit. But it is certainly worth some thought about whether it shows weaknesses in the respondent’s preparation.

That means thinking about the content of the identical passages. If two witnesses start their statements by describing in the same terms what sort of business the respondent is, or give identical accounts of how it operates its flexitime arrangements, for example, it will be very difficult to get the tribunal to see that as sinister (though they may be a bit irritated at being told the same thing twice). But if two witnesses give identical accounts of an incident that they both witnessed, it’s more suspect: two witnesses rarely notice and remember exactly the same events, and this does tend to suggest – at best – that they haven’t properly taken ownership of their statements. Just pointing out the similarity still won’t get you very far in itself – but it might get you somewhere in conjunction with other material. Your cross examination might go something like this:

You checked your statement carefully before you signed it and swore to it?

So you’re sure that everything you say in it is true?

So when you say at paragraph 32 “Waa waa waa…” – you’re sure of this?

You’d remember that because …. ?

Would you turn to page 351 in the bundle. It follows that “Waa waa waa… ” can’t be right, doesn’t it?

Would you turn to Ms Cox’s statement, paragraph 24 – she says exactly the same thing doesn’t she?

And have a look at Mr Ashmead’s paragraph 39 – he says it too?

By this time both the witness and the respondent’s solicitors are looking a bit silly. How silly depends on how important the evidence in question is, and how completely the document at page 351 shows it to be wrong. But certainly sillier than if only one witness had made this mistake.

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Should you ask for an interpreter?

The Employment Tribunal Service will provide an interpreter if you or one of your witnesses doesn’t speak good enough English to give your evidence without one. The best time to ask for an interpreter is at the case management discussion, though a later request will probably also be met.

If you can’t speak English at all, or your English is very poor, you don’t have a decision to make: you need an interpreter.

But if your English is good enough for most practical purposes, but not completely fluent, you need to decide whether or not you are comfortable giving your evidence in English. Not having an interpreter when you need one can be damaging, but using an interpreter has some quite serious disadvantages too, so you’ll need to weigh up the pros and cons.

Benefits of using an interpreter

There’s really only one benefit: if you use an interpreter, you will have a better chance of understanding exactly what it is you have been asked, and making yourself clearly understood in reply. The worse your English, the more significant this benefit is.

Disadvantages

There are quite a lot of disadvantages.

  • Interpreting is difficult, and the skill of interpreters varies. If your English isn’t too bad, and your interpreter isn’t very good, interpretation may introduce more confusion than it clears up.
  • If in fact you understand English pretty well, the tribunal is likely to notice that you have understood questions before they are translated to you. This may make them annoyed with you, or suspicious of you, in various ways. They may be annoyed that you have put the Employment Tribunal Service to the expense of providing an interpreter you didn’t really need. They may be annoyed by the fact that everything is taking longer than it should. They may suspect that your reason for using an interpreter is to play for time – so you have twice as long to decide what to say in response to each question. They may think that means you want to tell them lies.
  • Using an interpreter places a barrier between you and the tribunal. Instead of looking the tribunal members in the eye and speaking direct to them, you are speaking to another person, who is relaying your answers. It’s less immediate, and likely to be less convincing.
  • It takes longer. If you’re paying for your representation, that’s particularly bad news – but unless you’re very odd indeed you won’t enjoy being cross-examined, so it’s fairly bad news anyway.
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    Why not…?

    If a case goes part-heard, or the tribunal isn’t able to meet to discuss the outcome until some weeks or even months after the hearing, the tribunal may have rather dim recollections of how the witnesses came across by the time they make their decision. One thing that might help refresh their memories – assuming, that is, that you want them to remember your evidence – is pasting in a mug-shot of yourself at the end of your statement.

    This isn’t normal practice, though – it’s something that I think would be quite useful if it became normal practice, but at the moment it would be a novelty. So if you try it, don’t be thrown if the tribunal and/or the other side is a bit surprised. (And if you do try it, please comment on this post to let me know how it went down.)

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    The other side’s statements

    An important bit of preparation for the hearing is getting detailed comments on the other side’s statements from your client. There are two reasons for this.

    First, you may want to get your client (or other witnesses) to give some additional evidence commenting on the other side’s statements. You need to know before the hearing what they have to say, so that you can ask the right questions to give them a chance to say it.

    Second – and perhaps more importantly – you need this information for the purposes of your own cross-examination. If the dismissing manager says something that your client says can’t be true, you need to know why – so that you can put that to the dismissing manager when you are cross-examining her.

    So as soon as you exchange witness statements, send the employer’s statements to the claimant and ask for detailed comments on them. For everything they say, you want to know ‘Do we agree with this? If not, what do we say?’ It’s important to do this promptly, because you will often need further explanation of some of the comments: people aren’t always very good at realising quite how specalised their knowledge about their own workplace is. Depending on your client, it may be better to do this in a face-to-face meeting. Have the person who is going to present the case to the tribunal at the meeting if at all possible.