If you have never given evidence in an Employment Tribunal and are called upon to do so, you might be forgiven for feeling a sense of apprehension. That’s understandable – a lot can ride on the conclusion of a tribunal and this can be influenced by the evidence and performance of witnesses. There are several things to bear in mind when giving evidence and remembering these will make the experience a good deal more bearable.
Always answer questions truthfully. The witness will be under oath while giving evidence and being untruthful could have serious implications.
Answers should be addressed to the judge rather than the solicitor asking the question. – To assist in remembering this, the witness should turn their chair towards the tribunal panel, who should be addressed as “Sir” or “Madam”.
A witness should ensure that they do not talk too much when delivering their evidence. Sticking to the answer required by the question is the best course of action as raising other matters that are not germane may cause problems both for the witness and for others.
The witness should ensure that they stick to what they know. Straying into areas of which they have little knowledge can imperil their entire evidence.
There will be moments, or even short periods of silence in a tribunal. Witnesses should not fill these gaps with talk. If no question has been asked, no answer should be given. If the witness cannot remember something, they should say this is the case.
The solicitor should always be allowed to finish their question before the answer is given. Witnesses who pre-empt a question are not regarded kindly.
Although much of the questioning is carried out by the legal representatives, the judge may interrupt to ask questions that have occurred to them. This takes some witnesses by surprise.
If the witness doesn’t understand the question, they should say so and ask for it to be reformulated.
What Tribunals don’t like.
Another thing to consider is the type of behaviour that Tribunal panels don’t like. A witness would do well to avoid any of the following behaviours:
Talking too quickly – remember that the judge has to take notes on what is being said. The solicitor will ask the question when everyone is ready to hear the answer.
Not answering the question that has been asked. Witnesses may decide to interpolate new details, often because they worry that they may forget it if they don’t mention it immediately. The temptation to do so should be resisted. If necessary, write down the detail in question for future reference.
Wild allegations or accusations of mendacity. This will colour the tribunal’s perception of any evidence given. Reasonable and moderate languages should be used throughout, even if the subject of the tribunal is an emotive one (as they often are).
Time wasting – witnesses whose evidence is irrelevant may use up valuable time with no real contribution to the tribunal’s understanding of the case.
Once a witness has finished giving their evidence, they will be cross-examined by the other party’s representative. Needless to say, their job is to find areas that have been overlooked or inconsistencies that will be favourable to their party. The tone of questioning may produce an emotional response in the witness but this should be ignored and the evidence given in a measured tone. The witness should take their time and, if they need to consult documentation, they should do so.
Since no tribunal will expect every witness to have an eidetic memory, complete and precise accuracy is unlikely to be forthcoming. A witness should therefore not feel under pressure to ‘come up with the goods’ if they genuinely cannot remember a particular incident or conversation. They should say so when asked, rather than trying to prevaricate to cover up the fact that they don’t know.
The converse is also true; a witness should avoid the temptation to gloss over something that portrays them in a less than flattering light as this may affect their credibility (and taint perfectly good evidence) if it comes to light later.
After the cross-examination, the original representative may take the opportunity to ask a few questions; these will relate to any information that has come up following questions asked during cross-examination.
Depending on how the Tribunal is structured, there may be a break during the course of a witness’ evidence. If that is the case, the witness will not be permitted to discuss their evidence or the course of the case with anyone during said break. If conversation turns to the case, the witness should exclude themselves from it. It is also worth remembering that a witness who has been sworn in remains under oath during any break.
The employment tribunal judge will let the witness know when they are free to go – this will happen after all questions have finished. The witness can either return to the waiting room or they can stay in the room where the hearing is being held and watch the rest of the proceedings. It goes without saying that they should comport themselves with dignity and make no attempt to intervene in any manner with those proceedings.