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.

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.)

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.

The point of a witness statement is to say what happened – to the best of the witness’s knowledge, and to the extent that what that witness knows is relevant to the questions in dispute. Of course, that doesn’t mean you must confine yourself to statements that the other side will deny: plenty of what is not disputed is nevertheless relevant to what is disputed. And you want your witness statement to tell a story that is easy to understand, so you will need to put in some background anyway. So inevitably you will need to include a certain amount that is uncontroversial. Your statement might start something like this:

I first joined Widge It! (then called ‘The Widget Company’) as a technical assistant in the finishing department at the age of 17. I achieved various promotions, and by 2008 I was Head of quality assurance, with a team of 30 reporting to me either directly or indirectly. Until the events that led to my dismissal, my annual appraisals had all been either good or excellent, and I had an unblemished disciplinary record. I was given a loyal service award in 1995 after 25 years service.

Probably the other side won’t deny any of this. But the tribunal needs to know it, and someone’s got to tell them.

But the witness statement shouldn’t include:

The first of these is dealt with in more detail in Show, don’t tell. The tribunal will make up its own mind whether what happened was disgraceful, or unfair or whatever. Once they’ve heard all the evidence, you may want to suggest certain conclusions in your closing submissions – but putting this in a witness statement is premature, and likely to be distracting.

As to the second: again, the place for legal argument is in submissions at the end of the case.

The last category is a particularly tempting mistake. Your former line-manager says something in his statement you know is wrong, and you reckon you can prove it – perhaps there’s a document that shows he can’t be right. Why shouldn’t you point out the inconsistency in your witness statement?

The answer is that it isn’t evidence. It’s not part of what you say happened – it’s comment on some of the other evidence. A good practical reason not to put it in your witness statement is that, if you do, you give the other witness prior warning. If there’s a killer document in the bundle that shows your former line manager to be a liar, you’ll get much more out of it if he hasn’t noticed it until you take him to it in cross-examination.

In all three cases, the underlying point is that witness evidence should be confined to what you are able to say because because you were there. That’s what it is to be a witness. You’ll get your chance for comment and legal argument, but it comes later.

If you are cross-examining a witness, don’t comment on his answers.

That needs a little explanation. You can ask follow-up questions of the sort “But that makes no sense, does it, because…?” You can contradict: “But if you turn to page 247 of the bundle, we can see that that can’t be true?” You might even want to summarise the last few answers for impact: “So you’d seen Chris crying at her desk more than once in the last week, you knew she’d recently been off with stress, you were aware her GP was asking for her to be given a less pressured role, you’d read the OH report, you knew the Productions Team was under exceptional pressure, you knew the team leader had the reputation of a bully – and knowing all that you thought transferring her to Productions in the final month before the launch was reasonable?”

In a sense those sorts of questions are comments, but they are comments of the kind that call for an answer, and so a legitimate part of cross-examination. The point is to put the witness on the spot.

But comments like “We don’t agree with that,” or “We’ll have to agree to differ there,” or “That’s just not true!” don’t put the witness on the spot at all – you’ll either get a shrug in response, or a bit of panto of the “oh yes it is!” – “oh no it’s not!” variety. Neither takes the case any further forward.

This may seem obvious, but it is surprising how often it gets forgotten.

The problem seems to be a failure of communication between advisers, for whom the process is routine, and witnesses, for whom it is normally a complete one-off. Advisers think it’s obvious that the witness must be satisfied that the statement is all true: after all, it is a document that says at the top ‘statement of Joe Bloggs’ and has a place at the bottom for Joe Bloggs to confirm that the statement is true and sign it. Of course Joe Bloggs won’t sign it unless he is convinced that it is true.

But of course nothing of the sort. The currency has been devalued. An employment judge might throw up his hands in horror at the idea that a witness has sworn to a statement that, actually, he hasn’t bothered to check properly – but the same employment judge has undoubtedly ticked boxes confirming “I have read and accept the terms and conditions” half a dozen times in the last month, when what he really meant each time was “I can’t be bothered to read the small print, but I’m willing to accept it on the gamble that there’s nothing too outrageous in it.”

A witness statement is completely different. If you are a witness, you mustn’t sign your statement unless the confirmation at the end that it is true really does mean what it says. If your adviser has drafted something that puts an inaccurate ‘spin’ on what you’ve told them, make them correct it. If they’ve stated something as definite that you’re not sure about, change it so that the statement makes it clear you’re not sure. Putting your evidence in writing in a clear and logical order is your adviser’s job, if you’re lucky enough to have one; but making sure your evidence is correct is yours, and no-one else’s.

Advisers can sometimes cross the line between presenting your evidence clearly and persuasively (which is perfectly legitimate) and telling you what to say (which is not). If there’s a tussle over your evidence, it’s one you need to win; and if you come under explicit pressure to give evidence that is not true, sack your adviser.

The best way of grasping how important this is is to understand a bit about what it’s like to be cross-examined. Quite often there’s a sequence of questions that goes something like this:

Q: You have just sworn that your statement is true haven’t you?
A: Yes.
Q: And you approved and signed it a couple of weeks ago?
A: Yes.
Q: You wouldn’t have signed it without checking carefully that it was true?
A: No: [Actually - for the reasons given above - this is nonsense. All the same, 99 witnesses in a hundred will give the 'right' answer to this sort of question.]
Q: And presumably you’ve read it again recently?
A: Yes.
Q: So if there was anything in it you weren’t confident about, you’d have corrected it before you swore to the tribunal that it was true?
A: Yes.
Q: So when you say at paragraph 12 of your statement that it was Tuesday 5 May that Sheila shouted at you in front of the whole office, you’re sure that’s right?
A: Yes.
Q: And you’d remember that clearly, because it was the first day back after the Bank Holiday?
A: Yes.

This is ominous. The respondent’s representative wouldn’t be working so hard at confirming your evidence about the date on which you say Sheila shouted at you unless she was pretty sure she could prove you wrong. Her aim is to prove you a liar, rather than merely mistaken or careless – hence the emphasis on how sure you are of this bit of your evidence. You are almost certainly about to be taken to a page in the bundle that proves – or seems to prove – that one of you wasn’t in the office at all on Tuesday 5 May.

That’s why it is so important that your statement is your statement. Read the first sentence in your statement, and imagine the respondent’s representative taking you to it and asking you “Are you sure of this?” If the thought gives you a sick feeling, delete or rewrite the sentence. Repeat for every sentence in your statement. When you’ve finished, and made all the changes you need to make, you can sign your statement: not before.

The rule about putting documents into chronological order also applies to witness statements. Begin the story at the beginning and go on to the end. This makes it much easier for the tribunal to understand what you are trying to say.

Mostly it’s fairly clear which side any given witness’s evidence supports, but once in a while there’s a witness who has relevant things to say, some of which help one side, and some of which help the other. In those cases, both sides may be thinking of calling the same witness.

A witness isn’t ‘owned’ by one side or the other. There’s no rule that once the other side has interviewed a particular witness, you’re not allowed to. In fact there’s nothing to prevent a witness giving a statement to each side.

But there are two important things you mustn’t do in this situation. The first is to ask the witness – or let them give you – information about your employer’s case preparation. That information is privileged, and you are not entitled to it. It’s probably worth pointing this out to them when you speak to them – and make sure they understand that the same holds the other way: they mustn’t leak information about your case preparation back to your employer, either. The second is put pressure on them not to give evidence for your employer.

If your employer finds out that you’ve been doing either, they are liable to make a big fuss about it to the tribunal of the kind that could result in a costs order against you – or even having your claim struck out.

A few words on witness statements

Tribunals nowadays always expect witnesses to have written statements. Sometimes these are very long, sometimes very short. There are a few basic tips for all lengths:

1. Never use less than 12 point typeface – you will only irritate the tribunal if the statement is in tiny print. And double spacing may not save trees, but it allows room for the tribunal members to make notes, and it’s easier to read.
2. Always, always, always number the paragraphs. If you don’t know why, you will find out if you turn up to the hearing with several pages of statements with the paragraphs not numbered.
3. Statements are meant to contain evidence – that is, information known to the witness, directly if possible. If the information comes from someone else, it is hearsay, which is admissible in tribunals but doesn’t carry as much weight as if it was being confirmed by the person with the direct knowledge.
4. Don’t pad out your witness statements with arguments about the merits of your case. But on the other hand do make sure the statement covers all the relevant points the witness can cover. It reduces the credibility of evidence if it only emerges part way through the hearing and wasn’t mentioned in the witness statement. It is difficult to know what is relevant, and understandable if you err on the side of incuding too much, but think in terms of what points you have to show to make out the case – and don’t forget what you have to show to get the maximum compensation you can justify (if you are the claimant) or points that will reduce compensation (if you are the respondent).
5. Tribunals are not mind readers. They will only be able to take into account the evidence you give them, either through witnesses or in documents they are asked to read. They will probably not understand the jargon or abbreviations used in the particular industry the case is about, and cetrtainly won’t know who Joe Bloggs is, unless someone tells them. Put explanations of this kind of point in the witness statements – it saves the tribunal having to ask.
6. It is tempting to gloss over awkward facts, or simply leave them out. Bad idea. When the full picture comes out – as it nearly always does – it just makes the rest of the witness’s evidence less believable.

Claims very often have a main bit that is the real reason for going to tribunal, plus various little bits tacked on that wouldn’t have been important enough to make a claim about on their own, but which you felt, when you drafted your claim, that you might as well put in while you were about it.

So, for instance, complaints that a dismissal was discriminatory or unfair are often accompanied by more minor disputes about holiday pay or contractual notice pay.

When it comes to writing your witness statement, it is easy to overlook these extra bits. But it is important to remember that if the tribunal is going to make a decision about them, it will need to hear some evidence. So when you think you’ve finished your statement, look at it side-by-side with your ET1 and check that you have given evidence in your witness statement about everything you have complained about in your ET1.

If when it comes to it the extra bits just don’t seem important enough to bother with, you don’t have to pursue them. But if that is your decision, don’t just leave them out of your statement – tell the tribunal and the other side that you are withdrawing them. Otherwise you will risk giving the other side an excuse to apply for costs on the basis that you have put them to the trouble of defending this aspect of your claim and then not bothered to pursue it.