Does an et judge have to test the evidence?

[rapoo]

If employer's verbal evidence contradicts their written evidence and documents, does a judge have a duty to question employer about them? If the judge makes a finding of fact in favour of employer based on their conflicting evidence, do they have to explain how they came to that finding?

[atticus]

It is for the other party or her representative to ask questions to test the evidence.

Judges are frequently told not to "descend into the arena".

You have been told this several times. Do you read replies?

[dslippy]

(again) They judge does not pursue such enquiries. It is exacty as Atti says. At the most he might invite a party to clarify a clear contradiction, but it is common for a party's oral evidence to differ from written evidence.


The judgment should give enough detail as to how the decision was reached as willl allow either party to assess whether they should appeal.

[rapoo]

It is for the other party or her representative to ask questions to test the evidence.

Judges are frequently told not to "descend into the arena".

You have been told this several times. Do you read replies?

Yes i do read replies but the replies seem to conflict with each other. Im told a judge can only go off the evidence in front of them, but when the verbal evidence in front of them from one party states the opposite of the written evidence in front of them from the same party, im then told a judge is not allowed to go off all that evidence despite that being the evidence put in front of them.

[Sky90]

The judge can make a decision based on the evidence they are provided with, be that verbally during opening statements, cross examination and closing arguments/statements. They will not investigate. If the claimant states there is a breach of contract, the respondent may say there was not . The claimant will then need to provide evidence to show there was and the respondent will need to argue or prove there was not a breach.

If there is a he said she said situation, then it comes down to who is the more reliable or believable witness.

If issues have arisen since you put in your ET claim, or you have found issues that should have been included, then you need to contact the tribunal to have your list of issues amended. For example, if I went with an issue of disability discrimination, but then found there was an issue with age discrimination, I would need to go back and ask for it to be added on. If on the first day of my tribunal I said I wanted to add this new issue, the respondent would argue they have not been able to prepare for the new issue, and ask it not been dealt with. If the judge felt it should be dealt with, then the tribunal would likely be halted and pushed back to a later date so everyone can prepare. If this happened you then could have the respondent trying to argue for costs against you, as they would say that your actions have increased their costs, but costs are another story.

I stated an issue with my employer, my employer denied it. I supplied evidence and my employer still denied it. They did not provide any evidence to discredit what I was saying and to back up what they said. Unfortunately, it is not just a case of highlighting and issue, and providing evidence to support your claim, the respondent will likely argue against you to protect themselves, and despite proving what you are saying, you will still need to argue your case with the judge.

[rapoo]

"If there is a he said she said situation, then it comes down to who is the more reliable or believable witness."

How does a judge decide who is the more reliable witness; surely a witness whose story remains the same all the time is more reliable than a witness who changes their story? The evidence would show who was changing their story.

[dslippy]

Inconsistency is indeed something a court might look at and allow for, but it is an overall assessment, and this may very easily not be a clincher.

[rapoo]

"Inconsistency is indeed something a court might look at and allow for, but it is an overall assessment, and this may very easily not be a clincher"

can the judge find an inconsistency on his own or must it be part of a claim?

[ULA]

It would be really helpful if you could let us know what stage your claim is at, I am only presuming here but do you have a judgement in your case and if you have lost, are you are trying to establish whether you have grounds to appeal? If I am incorrect, please let us know where your case is at, this information would be very helpful to those of us advising you.

If correct and you are trying to establish grounds for an appeal then the basis for doing so can only be made on a "question of law". An argument that the tribunal misunderstood or misapplied the facts is not a ground for appeal. To appeal on an error of law, you would have to show that the tribunal:

• Misdirected itself on the law, misapplied the law or misunderstood the law applicable to the proceedings before it.
• Failed to give adequate reasons for its decision.
• Breached the rules of natural justice.
• Delayed excessively in giving its decision.

I can provide more information if the correct assumption has been made.

[rapoo]

The appeal has already been sent but it was rushed so checking if there was anything missed. From what you are all saying here the judge cant use the evidence put to him to find that one party broke employment law or did anything wrong, so when employer statement says they complied with the law and their verbal evidence shows they didnt comply with the law, the judge is not allowed to make a finding that they broke law.

[ULA]

Having already submitted the appeal, if there was anything missed, then I am sorry to say it is too late.

The judge will make the decision based on all the facts presented both yours and the respondents taking into account the relevant legislation and case law.

In the terms of any appeal the EAT will be looking at the facts against the criteria I set out in my post #24.

[dslippy]

No. He assesses the evidence put before him, and decides. If there is conflicting evidence he listens and decides. That is his job. What he does not do is to 'descend into the arena' and start questioning the parties himself to establish a new point. It is not a bright line, for example a question for clarification purposes is OK.

[rapoo]

"He assesses the evidence put before him, and decides. If there is conflicting evidence he listens and decides. That is his job. What he does not do is to 'descend into the arena' and start questioning the parties himself to establish a new point."

The judge is not allowed to make a new point, i get that part, but whats confusing me is he is not allowed to use the evidence to determine validity of an existing point. If employers evidence is the opposite of points they made earlier, both cant be right but the judge is not allowed to determine that employers evidence must be wrong or employers earlier points must be wrong. Kind of explains why the judge accepted conflicting evidence from employer at et.

[atticus]

May I ask whether you have received the detailed written reasons for the decision.

[Sky90]

“is he is not allowed to use the evidence to determine validity of an existing point.”

Was the evidence presented at the tribunal? Or did you present this afterwards as part of your appeal?