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.

It is usually important – and always desirable – for the tribunal to have a clear idea what it was that the claimant was employed to do. This can be surprisingly difficult: people tend to assume that their job title is sufficient information. If the job title is ‘French teacher’ or ‘train driver,’ they are probably right. If it is ‘External Account Manager’ or ‘Director of Operations,’ it will need some explanation. Some witnesses, asked what their job involved, will make noises like ‘I was responsible for all operational aspects of the company’s third and fourth tier ventures,’ and find it hard to grasp that this is not intelligible. It is important, when drafting a witness statement, to persist until you know what the claimant was employed to do and why it mattered, and then write that down in the witness statement in a way that will make the tribunal understand it too. Ultimately it may be necessary to ask questions like: ‘Tell me about your typical working day. You arrive at the office, make a cup of tea, sit down at your desk, check your email – what do you do next?’ or even (in desperation) ‘What would happen if your job didn’t get done? Why would it matter?’

In Balmain v Atlas Cleaning Ltd the employer said that it had dismissed the claimants because the manager of the shop where they worked as cleaners had required them to be removed from that work. The claimants sought a witness order to compel the manager to appear as a witness at the hearing of the unfair dismissal claim, but the tribunal refused. The EAT allowed the claimants’ appeal, saying the witness was plainly one who had potentially relevant evidence to give.

Unfortunately the EAT gave no guidance as to whether the witness was to be regarded as the Claimants’ or the tribunal’s witness: if she was the claimants’ witness, they would not normally be permitted to cross-examine her, whereas if she was the tribunal’s, either party could cross-examine her. In the very rare cases where it is desirable to secure the attendance of a witness who is unwilling to provide a witness statement, it is probably better that the witness is called by the tribunal as its own witness for this reason.

Balmain v Atlas Cleaning Ltd

Difficulties arise in tribunal if a representative believes that a witness has been vitally damaged under cross-examination, but the client does not. The representative may believe that the damage is sufficient to make settlement or withdrawal sensible, or even necessary, while the client confidently wants to press on.

The situation is particularly difficult if the witness who has come unstuck is the client themselves.

In such circumstances, it is vital that the representative give clear advice about what has happened and what the affect has been. If the client has inadvertently conceded the majority of his case, he needs to be told. More than that, he needs to be told precisely what he has conceded and why it is important. If his evidence has been fundamentally unconvincing he should be told. He also needs to be told what his options are. If there is a risk that costs might be awarded against him he must be advised of that as well. This is one of the many situations that requires both tact and firmness on the part of the representative.

Once that advice has been given, however, the decision is the client’s and the representative must accept his decision.¹ It is his case and the decision to settle or withdraw is his.

It should be noted, however, that this advice is only applicable to situations where the case is coming badly apart and some sort of serious corrective action is necessary. In most cases witnesses will answer some questions well and some less well. There is no need to carry out an exhaustive post-mortem of every witness. Indeed, it is likely to be detrimental, to the client and representatives nerves if nothing else, to do so.

1. Except in the rare cases that the representative is professionally embarrassed and must cease acting. And even then the client may continue alone.