Giving evidence in an Employment Tribunal

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 person asking the question. – To assist in remembering this, the witness should turn their chair towards the Judge, who should be addressed as “Judge”

• A witness should ensure that they answer the question asked of them only.

• There will be moments, or even short periods of silence in a tribunal. Witnesses should not feel the urge to fill these gaps by speaking or continuing to answer the question just asked.

• 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 person cross examining should always be allowed to finish their question before the answer is given.

• The Judge (or member of the panel) may interrupt to ask any questions that they have.

• 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.

• Not answering the question that has been asked.

• Coming across as aggressive or rude to the panel.

• Not answering questions honestly.

• Disagreeing with the opposing party on irrelevant points simply because they are the opposing party.

• Reasonable and moderate languages should be used throughout, even if the subject of the tribunal is an emotive one (as they often are).

Cross-Examination

When attending a Tribunal, you will have provided a written witness statement in advance, which will have been exchanged with the opposing party. You will be asked to confirm at the hearing that your witness statement remains true and that you have signed the statement. You will then be cross examined on the content of your statement by the opposing side.

The job of the opposing party is to question the witness on the content of the statement and try to attack 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.

A witness should not feel under pressure to recall every detail of the events, sometime the incidents that are raised happened months/years earlier. If they genuinely cannot remember a particular incident or conversation, they should say so when asked, rather than trying to guess what happened.

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 and is called re-examination.

Depending on how the Tribunal hearing is structured that day and the length of evidence, 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 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 released from giving evidence and 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.