Tagged: witnesses

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What doesn’t go in a witness statement

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:

  • judgements about how badly anyone has behaved
  • legal argument
  • comments about why what someone else says should not be believed
  • 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.

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    No comment

    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.

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    Witness statements have to be true

    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.

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    Whose witness?

    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.

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    Guest post: Peter Wallington QC


    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.

    Peter Wallington QC is a barrister specialising in employment law at 11KBW, editor of Butterworths Employment Law Handbook, and a part-time employment judge.

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    Witness statement: include everything

    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.

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    Can I make an unwilling witness give evidence?

    The answer to this question is yes in theory – but it’s almost always better not to.

    Mostly, people involved in litigation only call witnesses who are willing to give evidence for them. Typically, the lawyer or representative will interview the witness and find out what they have to say, and then draft a witness statement for them that sets out their evidence in a logical order. The witness will then read the draft statement and make sure they are happy with it before it is finalised. That way, everyone knows before the hearing begins what that witness says happened.

    If you think someone has relevant evidence to give, but they are not prepared to talk to you or give you a statement, you can ask the tribunal to order them to attend the hearing to answer questions. But what the tribunal can’t do is order them to co-operate with you. So there is a high risk in asking the tribunal to make a witness order against someone who doesn’t want to be there: you don’t know what they are going to say.

    Nine times out of ten – probably ninety-nine times out of a hundred – if a witness isn’t prepared to attend voluntarily, you’ll do better not to try call them at all.

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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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    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.