Employment tribunals normally expect witnesses to read their statements aloud. If the statements are very short, there’s something to be said for this: it gives the witness an easy task to do while they settle in, and meanwhile everyone else can draw breath and shuffle their papers and remember who this witness is and where they fit in the story. Where the statements are long, it’s pretty mad – but it still often happens.

It’s helpful to know in advance roughly how long this will take, so it’s not a bad idea to run a word count once you’ve finished drafting your statement, and then put the total word count on the last page. The speed at which people read aloud varies, but 160 wpm is about the middle of the range – so for a rough estimate of the number of minutes the witness will spend reading aloud, divide the number of words by 160.

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.

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.

Witnesses in the employment tribunal are usually asked to read their statements aloud. Often the statement will refer to documents, for example:

After that, I did not feel I could work for the company any longer, so I wrote my letter of resignation dated 16 September 2008 [235].

One of the small things you can do to help the hearing run smoothly is to let your witnesses know in advance how you’re going to handle references to documents. Do you want them to read out the page numbers? Do you want them to pause so that you can ask the tribunal to read the document? Do you want them just to plough on, and only pause if you interrupt and ask them to?

There’s no single right way of doing this. Sometimes by the time your witness gives her evidence, the tribunal will already have seen all the documents she refers to – so she can just read her statement, ignoring the page references. Sometimes you will want to get her to pause at each reference to allow the tribunal to read the document referred to. Sometimes you will want to pick some documents for the tribunal to read, but pass over others. Of course, you do need to have made a decision about this in advance; and if your decision is to pause only for the documents the tribunal has not yet seen , then you need to know which these are and have them marked on your copy of your witness’s statement.

The main thing is to let the witness know before she starts giving her evidence how you plan to handle this: otherwise she may be left hesitating at page references, looking at you anxiously and wondering if you’ve decided the tribunal doesn’t need to read this document, or just forgotten to ask her to pause. It won’t matter hugely, but it is the kind of thing that can annoy the tribunal and/or make a witness feel a bit unsettled – both of which are best avoided.

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.

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.

Sometimes when you ask a simple factual question, the witness doesn’t seem to want to answer it at all. The exchange might go something like this:

Q: Did you read the Claimant’s personnel file and previous appraisals before deciding to dismiss?

A: Well we took into account everything that was relevant and although the Claimant had performed quite well during his first few years, it was really the last period after the restructuring exercise that we were interested in…

Q: Did you read his previous appraisals?

A: What you’ve got to understand is, well of course we considered everything in the round, but when it came to it in the final analysis and of course bearing in mind the kind of exercise we were been going through [witnesses really do go on like this] it wasn’t about his previous performance, it was ultimately about the incident arising out of his response to the January 2007 reorganisation.

When the question – like this example – really does admit of a simple yes/no answer, it is fair to insist. Even then, a bad-tempered ‘Please answer yes or no – did you… (etc.)?’ can look bullying, and is probably not the best way of getting to the answer anyway. Better is something like:

Q: Does that mean no, you didn’t read it before deciding?

At the same time, do bear in mind that you are not necessarily entitled to insist on questions being answered with a simple yes or no: sometimes that will genuinely give a misleading impression, and the witness is entitled to explain why. For example:

Q: The date on this letter is 24 September isn’t it?

A: Yes, but that is not really..

Q [interrupting]: Thank you! So you…

Judge [interrupting the questioner]: Let the witness finish her answer.

A: The date shown at the top of the letter is 24 September, but that’s not the date it was written. This was a letter very like the letter I wrote to Mr Jones the previous week, so what I did was open that file, copy the contents, save into a new file and then edit it. Unfortunately I forgot to change the date.

If you were too impatient to ‘bank’ what you thought was a useful admission, you won’t have found out what the witness’s explanation is. One possibility is that the witness is making it up as she goes along. If so, then you don’t want her to give it for the first time under re-examination by her own side, because you will have lost your opportunity to probe further or challenge it. For example, given an explanation like the example above, you might (if you are fairly sure the witness is lying) usefully continue:

Q: So you say this document was actually created on 5 October?

A: Yes.

Q: So if you get a colleague to email it to the tribunal over the lunch adjournment, we will be able to see from its file statistics that it was created on 5 October?

A: Er… well I’m not sure anyone but me would be able to find it and anyway I’m not sure I was actually at work when I wrote it, I may have written it on my laptop which got stolen over Christmas…

By now the witness is looking fairly shifty.

The other possibility is that the witness’s explanation was a good one, with the added merit of being true. That’s bad news for you, obviously. But the likelihood is that if you don’t let her give it in cross-examination, she will be given the chance to clear it up in cross-examination anyway – so you might as well hear it now. At any rate it may help you focus on what matters in the rest of your cross-examination.

After the respondent’s representative has finished cross-examining your witness, you have the chance to ask some further questions arising out the cross-examination. This is called ‘re-examination.’

The purpose of re-examination is to clarify matters on which you think the cross-examination of your witness has produced a misleading impression. It is not a chance to ask some more supplementary questions that you forgot to ask the first time.

To a non-lawyer, this can sound like one of those arcane rules that have no real function except to make the whole process complicated and intimidating. But it does actually have quite a sensible purpose. If you introduce new material after your witness has been cross-examined, that means there is material that the other side has not had a chance to challenge by cross-examination. So they will have to have another go after your re-examination. That way, the two sides could play ping-pong with the same witness indefinitely. The point of confining re-examination to matters raised in cross-examination is to make sure that once re-examination is completed, the witness can be released.

If you realise at this late stage that you have forgotten to ask something important of your own witness, don’t try to slip it in under the guise of re-examination – the tribunal is much more likely to be annoyed than fooled – just admit to the oversight and ask permission to correct it. Be ready to explain why the omitted material is important.

It is rarely a good idea to re-examine at length. The danger is that returning to a point on which you think your witness has given some damaging answers will simply serve to underline for the tribunal the weaknesses of your case. Your witness may well be tired and anxious by this time – further questioning on an area in which she previously got into difficulty may just make her look increasingly shifty.

As a rule of thumb, only re-examine to clarify a fairly straightforward factual misunderstanding. And bear in mind that the prohibition on leading questions remains in force: if you don’t think you can get the answer you want except by saying to the witness something like ‘The real explanation for this was p,q,r wasn’t it?’ don’t bother trying. The witness has to be able to give the explanation herself, or it is no use.

In an ideal world, witness statements would be ready days, if not weeks, before they had to be exchanged. There would even be lots of time for tweaking, polishing and general fiddling with them, to make sure they were absolutely perfect.

In the real world, witness statements often have to be prepared quickly.

Even when you are in a rush it is important to make sure that the statement is complete and accurate. In particular, advisors must always make sure that their client has read and agreed the statement before it is exchanged.

If you are really rushed there are ways of cutting corners, without causing problems.

Exchange unsigned statements

It is often easier to get confirmation that a statement is okay than it is to get a signed copy from the client. There is nothing wrong with exchanging unsigned statements. It is simply a myth that statements must be signed before they are exchanged.

Leave page numbers blank

Sometimes you will need to exchange statements before the agreed bundle has been finalised. If this happens it is normally sensible to leave space to insert page numbers later. This allows you to exchange on time, but still provide the tribunal with a copy with cross-references to the bundle of documents.

Employment tribunals tend to order that witness statements are to be ‘exchanged’ on a certain date. What is implicit in this is that there will be simultaneous exchange, so that neither party gets a preview of the other side’s statements before it writes its own. For this reason it is normal to agree with the other side to exchange by fax or email at a particular time of day. If you feel anxious about this, you may want to telephone the respondent or its adviser when that time comes to check that they are ready to exchange. The only way to be completely sure of simultaneous exchange is to agree to exchange at a meeting, but this is rarely if ever done – it is too inconvenient, and the advantage in seeing the other side’s witness statements before you write your own is minor anyway.

Written submissions may be treated the same way, although some tribunals will order written submissions to be dealt with in sequence, in the order that oral submissions would be made. Simultaneous exchange of submissions is even less important than simultaneous exchange of statements, because by the time submissions are drafted, all the evidence has been given and the issues should be clear. Each side will already have a pretty good idea what the other is going to say.