A Quick Question Regarding Tribunal Witnesses

[UC989]

Hi,

I have a quick question regarding employment tribunal witnesses. I'm still trying to track them down

(https://legalbeagles.info/forums/for...-and-procedure)

but I want to be prepared if and when I do find them.

If you ask someone to be a witness for you and they agree. Are you allowed to show them the ET1 and ET3 including the riders or any other paperwork from the bundle?

Basically I want them to know what has been said by both sides but I'm unsure if by doing that I would be breaking the law or going against tribunal rules.

[UC989]

The time has come for me to start preparing witness statements. I should have started it a bit earlier but I’ve been preoccupied with trying to get full disclosure from the respondent.

https://legalbeagles.info/forums/for...pply-documents

I’m reasonably confident in what I have to do in regard to my statement with layout, content etc. But I’m struggling with the three witnesses I’d like to use. The majority of my problems are to do with the practicalities or procedures involved. Two of the witnesses still work for the company and the third has left and I only know two by first names. This obviously presents some problems. My main areas of concern are;

1. How do I contact them? I was thinking of writing to my former employer and asking them to forward on a request that I would like them to be a witness. A short letter with a contact email address. I’m assuming that I can’t ask for their contact details under data protection rules? Am I also correct in thinking that I don’t have to inform the respondents lawyers what I am doing?
2. What do I do if they don’t respond? Given my ongoing troubles with disclosure I suspect my request will just be ignored. If that happens I was thinking of saying in the initial contact that if I don’t hear anything in 7 days (normally I would say 14 but time is short) that I will apply to the court for a witness order for each. The court needs the name and address for the witness order how do I deal with that?
3. If I do get in contact do I send them a letter/email with my questions and an example of a witness statement to help them? I’m assuming I don’t have to physically meet with them? If I get a statement and they come to the trial. Can I ask them questions at the trial which I haven’t asked them in my initial request? Or is it limited to what’s in their statement?

Each of the three witnesses also present some problems which I need help with.

Witness One
They still work for the company (as far as I know). I only want to ask them one question. It’s not about my unfair dismissal. My claim is under H&S. The question is about a H&S incident which the respondent is denying happened. Is it okay to ask that? I’m not sure if they would be a willing witness.

Witness Two
This person no longer works for the company. They know what happened. I would like to think that if I could contact them directly they would willingly give a statement.

Witness Three
This person was my direct manager and is the cause of the problems and case. You would have thought they would have been the most important witness from the respondents point of view. But they weren’t on the list of witnesses in the CMD agenda. While it might seem like a strange witness from my point of view. I’m think they aren’t on their list of witnesses for the reason I want them to be a witness. Their personality type would make them a disaster on the witness stand. It won’t take much for the person to become angry, flustered and there mouth to run away from them and end up telling the truth. Everything in my ET1 is true. The respondents only defence has been to completely lie about what happened. If somebody tells the truth of what happened I’ll win.

I’ve read a lot that a reluctant witness is a bad idea 99% of the time. But I do think witness three is the 1%. Witness two if I could contact on my own somehow. I would like to think would make a statement willingly. They knew the way witness three operated wasn’t legal, fair or right and they weren’t shy about making their feelings known. Witness one would be nice to have but it’s not a major issue if I can’t get a statement.

Surely struggling to get contact details of a witness as I am, must be a common problem. But I couldn’t find any details on the web about it. Can anybody can help or point me in the right direct with the above?

[ULA]

Hopefully I can provide some answers to your questions.

In order to ask someone to provide a witness statement then you will need to contact them and request whether they would be willing to do so. Remember that in giving their statement it needs to give evidence that supports your claim because they witnessed the events and can corroborate your story, or their evidence may be useful if the employer says something different happened.

As you say your issue is that if you do not have their details that will be very difficult. If you did write to your employer asking for the contact details of witnesses one and three then, even if they were to assist, given their history (previous posts), all they could do would be to let the individuals know you were trying to contact them and why, then provide contact details for you. It would then be up to these people as to whether they got in touch with you.

As a suggestion the two individuals at your ex-employer could you email them or write to them at their work address and ask them to contact you? With witness number 2 can you make contact via an ex-colleague maybe or even social media?

A witness order is used to compel a witness to attend a tribunal hearing and for that you must apply in writing to the tribunal office dealing with the case, giving:

· the name and address of the witness

· details of what the witness may be able to say and how it will help the case

· the reason the witness has refused to attend (if they gave you one)

Just some general thoughts on your witnesses. Two are still employed by your ex-employer so getting them to do a witness statement let alone attend a hearing may be a struggle. My reference to them being able to attend the hearing is that the tribunal will usually ignore a statement from someone who is not there. Witnesses often promise to come but then get cold feet before the hearing and don’t turn up, so if there is the likelihood of that then a witness order may be necessary.

On witness one, are you sure that they witnessed the incident that you are saying the company denied took place? If they did not what would be the purpose for you getting them to provide a statement? On witness three are you sure they would really help your cause. If they were to attend the hearing you need someone who when dealing with their statement and more particularly under cross-examination will be calm, come across as credible and certain of their facts, and not loose temper.

If they do agree to providing a witness statement, then correctly you have identified there is a standard for their presentation to follow. Send them a template and ask them to detail in their own words what they witnessed or what evidence they have to support your claim or that provides something useful if the employer claims a difference as to what happened.

You cannot lead them as to the contents of their statement. Where, possible the witness statement should refer to exact details, such as dates, times, who was present at particular key events or discussions, whether points were communicated verbally (and if so, whether by phone or in person) or via email or letter.


Usually at the hearing your witness will be asked to read out their statement, If the judge hasn’t already read it. They will then be cross-examined by your ex-employer’s representative, you may then ask any further questions to clarify any points raised. Aside from answering direct questions in cross-examination and possibly from the Judge, the statement will constitute the only evidence which the witness is allowed to present to the Tribunal.

Hope this helps.

[UC989]

Thank you for taking the time to reply in such detail. It has clarified a number of points for me. As the claimant, when it comes to witnesses the deck is certainly stacked against you!

Just so I’m clear on one point. When I cross examine the respondents witnesses, can I only ask them about their statement? Or, is any reasonable, related question acceptable?

[ULA]

During cross-examination you must put your case to the witness. That means that wherever there is a significant difference between what the witness is saying and what you or one of your witnesses have said or will say, you need to question the witness about that. You must challenge all material parts of the evidence given by the Respondents witnesses which you do not accept.

Cross-examination will normally require detailed preparation and you will need to review carefully all the witness statements provided by the Respondent and have prepared questions in advance of the hearing. In addition when the person is giving evidence listen carefully to their answers to questions the Respondent asks them as this may require you to ask some further questions regarding their statement.

There are essentially two things you are you are trying to do in cross-examination. The first is to get the witness to give evidence that the tribunal will accept, but which will assist your case more than theirs. The order of the questions in doing this can be quite important and the use of factual questions to build your case are good in assisting with this. The second purpose of cross examination is to undermine the parts of the witness’s evidence that harm your case, by demonstrating that it is careless, mistaken or inaccurate. Make sure that you cross examine on the documents, where they are relevant – for example, pointing out any inconsistencies between them and also against the oral evidence given. If there is a document that supports your case, make sure that you draw the tribunal’s attention to it.

With cross-examination you are trying to persuade the tribunal to find in your favour. Respondent witnesses rarely admit to having been mistaken or inaccurate, and will continue to insist on their version of events even after the inaccuracies in their story have been pointed out. If cross-examination has shown that the Respondent’s evidence is inconsistent with the documents in ways their witnesses cannot coherently explain, that is enough. It is worth pushing witnesses far enough to demonstrate to the tribunal that their story is thoroughly implausible; but there is no need to go further than that and do not try and bully them into admitting that they have been lying or not accurately reflecting the events that took place.

Your questions need to be based on the evidence provided in the documentation, however you can also raise questions on inconsistencies that arise between the written witness statement and the oral evidence or even if the oral evidence of one witness raises something against the written statement of another witness. The one thing you cannot do is add new evidence into the cross examination.

[UC989]

Thank you. That is very helpful. I'm trying to make sure I follow the process and procedure as accurately as possible. So as not to annoy the judge too much. I've seen how that can cost a person (not me).

[ULA]

Hi,

I have a quick question regarding employment tribunal witnesses. I'm still trying to track them down

(

https://legalbeagles.info/forums/for...-and-procedure

)

but I want to be prepared if and when I do find them.

If you ask someone to be a witness for you and they agree. Are you allowed to show them the ET1 and ET3 including the riders or any other paperwork from the bundle?

Basically I want them to know what has been said by both sides but I'm unsure if by doing that I would be breaking the law or going against tribunal rules.

Hi UC989 I have merged you new post into your previous thread. It makes it much easier for answering if you can just keep the one thread going. Many thanks

[ULA]

Before the hearing a witness should familiarise themselves thoroughly with their witness statement and any documents referred to in their statement. Also, they need to familiarise themselves with your statement particularly where it refers to their own statement or the same issues that are covered in your statement.

Witnesses either in your questioning or the Respondents cross-examination are being asked about the issues referred to in their witness statement and any issues where their statement differs from other statements or evidence.

Witnesses are permitted to discuss the case amongst themselves in advance of the hearing, but once a witness has started to give evidence the witness cannot discuss the case with anyone or be present when other people discuss the case. This continues until the witness has finished giving evidence and is released from giving any further evidence by the Employment Judge.

[ETFarce]

but once a witness has started to give evidence the witness cannot discuss the case with anyone or be present when other people discuss the case. This continues until the witness has finished giving evidence and is released from giving any further evidence by the Employment Judge.

Does that mean a witness can not be present when the other witnesses are giving evidence to the ET?

In my case the Judge allowed all witnesses to sit with respondent and surprise surprise they all backed up each others verbal statements. The only time one of them contradicted the others was when he was released from giving evidence and went home. The other witnesses carried on giving evidence and then the first witness was called back to give further evidence and this time, because he had not heard what the others had said, he completely contradicted them.

If i had known at the time that witnesses were not allowed to be present while other witnesses were giving evidence, I would have insisted they remained in the waiting area until called for.

[ULA]

For clarification ETFarce this pertains to i

f there is a break in the hearing whilst the witness is giving evidence, for example over lunch or overnight. In which case they will be unable to discuss the matter with anyone because you continue to be under oath.

[UC989]

Thank you for the reply and my apologies for the lateness of my response. I don't always have computer access.

Unfortunately I'm very limited on what I can say until after the tribunal. The internet is not as anonymous as many might think!

[UC989]

Hi,

One of the conditions from my CMD under the hearing papers reads,

"Each party is to bring two hard copies of any submissions or skeleton argument to be relied on, and one copy of any reported authority relied on"

The later part I assume is for example. The respondent has broken a minor relatively unknown law known as say 'x'. I would bring the statute that says 'x' is a law which I would then present to the court to prove they have broken the law?

Perhaps I'm being a bit stupid on the first part but I'm struggling to understand what it means in context to the employment tribunal. The submissions and the skeleton argument. Does that mean for example a copy of the case law which the claimant/respondent is using as the basis of their argument on a certain aspect of the case?

I wasn't sure if I should have posted this in with the witness statement thread? If I should have please accept my apologies and merge the thread.

[efpom]

Normally, authorities = case law that sets a precedent that is binding on a lower court. - but you might wish to clarify with the tribunals service, in writing whether, in fact, this tribunal requires a copy of any legislation that might be referred to by the parties.

[UC989]

Thank you. I hadn't thought of ringing the court. Obvious now you've said it!

[ULA]

Hi UC989, have moved your recent posts into your existing thread.

A skeleton argument is your opportunity as the Claimant to show how the law interacts with the evidence that is being presented at the tribunal. It is important to research the law and in particular to look for precedents (i.e. case law) that are relevant to proving your case. Bear in mind that tribunals will normally only consider cases to which they have been expressly referred. While the judge can be expected to know the main authorities, it can be worth setting out concepts established by, or pertinent quotes from key decisions. Given time constraints, it is better to focus on a small number of decisions which are of particular relevance to the key areas of your case.