Whether it is your claim or you have been asked to support someone by giving evidence, being a witness and giving evidence at an Employment Tribunal Hearing can be a daunting prospect. For more information on whether you have to attend the Hearing, read on.
What Is A Witness?
A witness is someone who has information about a particular event. This information will be “evidence”.
It may be you were present at a meeting, and therefore you saw and heard exactly what happened. Or, you may have been in the same room when a particular event happened, for example you overheard a colleague being rude to another. Whatever the circumstance, what you have witnessed is your evidence.
Why Have I Been Asked To Be A Witness?
Witnesses are needed to provide evidence to help prove (or disprove) a claim.
As the person who has stared the claim (the Claimant) you will be expected to be a witness and will be considered the primary witness to your claim.
If you are not the person who has started the claim, you can be asked to be a witness by the Claimant, or the employer (the Respondent). They will have asked you to be a witness as they consider you have relevant information which will support their version of events.
If you do not believe you have any relevant information, for example you did not overhear a relevant conversation, you need to tell the person who has asked you to be a witness.
What Is Witness Evidence?
Witness Evidence is usually presented as a written witness statement which is then supported by giving oral evidence at an Employment Tribunal Hearing.
Your witness statement is a formal written document containing all your evidence. For more information on witness statements, view my blog at: https://lincslaw.co.uk/blog/employment-tribunal-witness-statements/
Once you have submitted a witness statement, you will be expected to attend the Hearing. Your witness statement will be your evidence and all parties (including the Judge) should have seen your statement prior to the Hearing.
When you are instructed to do so, it will be your turn to “give evidence”. You are unlikely to have to read your witness statement out, but the other party, your representative (if you have one) and the Judge will be able to ask you any questions they have. They may be trying to clarify a point you have made or ascertain further information about an event.
I Am Happy To Give Evidence In Writing, But Do Not Want To Attend The Employment Tribunal.
As the Claimant, your evidence is vital to your claim. Not attending the Hearing could have a detrimental impact on your case.
The Employment Tribunal is able to just consider written witness statements, provided they are submitted at least 7 days before the Hearing and all other parties have received a copy at the same time. You should inform the Employment Tribunal and other parties when submitting the witness statement that you to not intend to attend the Hearing to give oral evidence. Obviously, the other party can object to the Employment Tribunal considering your witness statement if you have not attended the hearing.
The Employment Tribunal will decide whether to allow your written witness statement at all. It then has a discretion as to how much weight to give your written evidence. If, for example, your witness statement contains information which the other party disputes, just accepting your written statement puts the other party at a disadvantage as they cannot question you on your statement. Due to this, the Employment Tribunal Judge may be more inclined to believe the attending party’s version of events.
It is important the Employment Tribunal has all the relevant information available to it to make its decision. In certain circumstances, the Employment Tribunal can make a witness order against you.
What is a Witness Order?
A witness order is an order made by the Employment Tribunal which requires you to attend the Hearing to give evidence.
The Employment Tribunal can make a witness order of its own accord if it considers you have vital evidence which needs to be considered. Alternatively, any party to the proceedings can make an application to the Employment Tribunal for an order to be made.
When considering whether to make a witness order, the Employment Tribunal will review:
- How relevant is the witness’s evidence to the dispute?
- Is it necessary to make an order to ensure the witness attends?
If you are the Claimant and have decided you do not want to attend the Final Hearing to give evidence, it is likely the Employment Tribunal will very quickly consider both of the above tests are satisfied. Your evidence to your claim is vital and helps explain the circumstances of why you brought the claim.
If you have been asked by the Claimant or Respondent to be a witness and you have refused, it is possible the Employment Tribunal will grant a Witness Order requiring you to attend.
I Have Instructed A Solicitor To Represent Me During My Claim, Why Can’t They Give My Evidence?
Instructing a solicitor to represent you throughout your Employment Tribunal claim takes a lot of pressure off you. They will tell you what needs to be done and by when and deal with correspondence from the Employment Tribunal and other side for you.
However, a solicitor cannot give your evidence on your behalf. By its very nature, it is your evidence. They can present your claim to the Employment Tribunal at the Hearing, set out the events and information you are relying on, they can ask the other witnesses questions on your behalf, but they cannot give your evidence to the Employment Tribunal in your absence.
What Could Happen If I Refuse To Give Evidence?
There are a few possible outcomes if you refuse to give evidence for your own Employment Tribunal claim.
- The Hearing may carry on in your absence and your written witness statement will be your only evidence (although the Employment Tribunal may pay less attention to it due to your absence).
- The Employment Tribunal may make a Witness Order against you compelling you to attend the Hearing to give your evidence.
- Your claim may be “struck out”. This means your claim will not proceed any further.
- You may be subjected to a costs order.
Top Tip For Giving Evidence At The Employment Tribunal
It is natural to feel nervous or anxious when asked to attend any Hearing to give evidence. Try and remain calm. Just be honest, tell the Employment Tribunal the facts, what you saw and heard.
Lincs Law Employment Solicitors Can Help You
If you are unsure who to call as a witness to your claim, we can help, please call us on 01522 440512 to have an initial free of charge conversation with one of our specialist employment solicitors. Alternatively, for more information about Employment Tribunal Claims in general, please visit our website at: https://lincslaw.co.uk/services/employees/employment-tribunal-claims/
Managing Director, Specialist Employment Solicitor
Lincs Law Employment Solicitors
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