witness guide what to expect This note is intended to give an overview of the procedure that will be followed at the Tribunal hearing and what, as a witness, you can expect when giving your evidence. Pre-Hearing Preparation Before the hearing familiarise yourself thoroughly with your witness statement and any documents referred to in your statement. Also familiarise yourself with the parts of the Claimant's statement that refer to your statement or the same issues that are covered in your statement. 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. Getting to the Tribunal On arrival at the Employment Tribunal you will have to sign in as a witness for the Employer (the Respondent to the action). You should then make your way to the Respondents waiting room where we will meet and we will have the chance for discussion and to answer any further last minute questions you may have. It is safest to keep any discussion of the case to the Respondent's waiting room for fear of being overheard by the other side. The Claimant and his/her party will be in a separate waiting room, but be aware that you may meet them in the reception area. The clerk to the Tribunal will then usher you (and the rest of the Employer s attendees) from the waiting room into the Tribunal itself when the Employment Judge and the Panel members are ready. When you go in it is customary that as Respondents you should sit on the left hand side with the Claimants sitting on the right hand side facing the Tribunal Panel. For "straightforward" cases, occasionally, there will be a Judge sitting alone. When you enter the Tribunal itself you will see that the room is laid out in a particular manner. Generally, the Tribunal Panel of 3 persons sit on a slightly raised platform. In the middle is the legally qualified Employment Judge of the Tribunal who will run the hearing. Either side of the Employment Judge are two non-legally qualified lay members. These are two representatives, one from an employer focused background and one from an employee/trade union background. Birmingham Exeter London Manchester Nottingham www.brownejacobson.com/education
All the tables and chairs in front of the Panel are for the parties to the action. The Representatives will sit at the front nearest the Panel and witnesses and spectators will sit in the chairs behind the Representatives. Start of the Hearing When the Tribunal starts, the Employment Judge will introduce herself/himself. All the advocates sit down, even when addressing the Tribunal. Evidence is given with the witness sitting down. All the Company's witnesses should dress smartly. The Tribunal is less formal than a Court and there will be no one wearing wigs or gowns. Giving Evidence When it comes to your turn to give evidence, you will be called forward. You should go to the witness table. The Tribunal clerk (if he or she is there) will usher you. You will then be sworn in or affirm (if you are not of a religious persuasion). The Tribunal Clerk will ask you for your preference on this point before the Tribunal hearing begins. You will then sit down and will initially be asked to give your name for the record. When you are giving evidence, a copy of the hearing Bundle will be in front of you. You will notice that in the bottom right hand corner of the Bundle there are paginated numbers that run throughout the file. You will be referred to some of these documents whilst you are giving your evidence and using the page number of a document should take you straight to it. You will already have familiarised yourself with the documents in the Bundle that are relevant to your evidence, especially those which are referred to in your statement. Your witness statement forms the basis of your evidence. In some cases the Tribunal will read your witness statement in private, possibly before the hearing starts. In other cases, you will be taken to your statement and you will be asked to read it out loud. In either case, you may be referred to a document or asked an additional question. The Employment Judge may also ask you questions based on what he/she has read or as you go through your statement. No matter who asks you a question, you should direct your answers to the Employment Judge. Your witness statement together with your answers to these questions forms your "evidence-in-chief". You will see that there is a glass of water in front of you. Try not to fidget as this gives the Tribunal the impression that you are a nervous witness and perhaps a witness with something to hide! After you have given your evidence-in-chief, the Claimant (or their representative) will then cross-examine you. Cross-Examination You will be asked questions by the Claimant (or their representative). They may ask leading questions in order to put the Claimant's case to you. We will object to improper questions but otherwise you cannot ask for assistance in answering a question or discuss it with others.
It is the job of the Claimant to put their case to you. This may involve the Claimant (or their representative) stating that he/she does not believe a particular answer that you give and/or suggesting answers to you. Try to remain calm, and reply politely but firmly to such questioning. If you do not understand a question say so, or ask for the question to be repeated if you are unsure as to its meaning. If the cross-examination becomes too aggressive we will intervene and request the Employment Judge insist on a different line of questioning. Re-Examination After you have been cross-examined, we may wish to re-examine you. You may be asked a few more questions just to clarify some issues that might have come out of cross-examination or which have been given the wrong "spin" by reason of the cross-examination. The Employment Judge and the lay members of the panel may also ask you questions at any time, although these may be saved up until the end. General Points on Giving Evidence The prospect of giving evidence may seem a little daunting and it may seem as if you are under examination and being subjected to a memory test. This is not the case. The simple rule is to give a truthful answer rather than try to get the "right" answer. It is quite proper to say "I don't know" or "I can't remember" if that is the truth. It is also open to you to ask the person asking you a question to rephrase an unclear question or to look at a document to refresh your memory before answering a question. Remember: Keep your answers simple and to the point Answer yes or no wherever you can Try to be as relaxed as possible Speak slowly and clearly and do not allow yourself to be hurried. Go at your own pace Answer the question, but do not contradict what is in your witness statement unless the statement is incorrect It is likely that the Claimant (or their representative) will not accept at least some of what you say, and may simply tell you that you are wrong. Try not to be drawn into an argument with him/her. You are appearing at the Tribunal to state the facts as you see them and to give your opinion whether he/she likes it or not Consider your body language and try to give an air of confidence in the evidence you give Whatever you do, do not get angry when being asked questions by the Claimant (or their representative). It is possible that the Claimant's case will be asserted quite strongly. Try not to be drawn into a personal conflict
Remember that it is not the Claimant (or their representative) who needs to be convinced that your answers are correct. It is the Tribunal Panel Beware the power of silence. Once you have answered the question do not feel the need to fill the gap. Note the following taken from a tribunal judgment verbatim: "In arriving at our conclusions in this case, we have had to consider the competing evidence. Where there has been conflict between the witnesses on a relevant point we have preferred the evidence of the respondent's witness. We shall explain why we prefer them. We found [Respondent Witness A] to be entirely honest and transparent. She was prepared to see the other side of the argument. If there was a failing then she was prepared to concede. Her answers were very clear. She was not afraid to answer difficult questions put to her in crossexamination. We found that she was concise and kept her answers on point and presented as a very capable manager. She was very professional in her approach to the claimant and the way in which she dealt with her at work. [Respondent Witness B] presented as honest and straightforward. Any failings were relatively minor. We were surprised that she did not keep any notes or minutes of the meeting that she had with the claimant in June 2004. However, as the claimant had not been specific, this may have accounted for that failing. This witness was removed from the day-to-day management of the claimant by the respondent. As to [Respondent Witness C] we found that she was open, honest and entirely transparent. She adopted a very professional approach to her dealings with the claimant. We know that witnesses can present as being honest and credible, but also be mistaken. We asked ourselves whether or not that was the case here. However, we find that the respondent's witnesses were not mistaken. This is in contrast to the claimant. The claimant was not a very good witness in her own cause. We found that in answering crossexamination, she did not always deal with the question that was put to her, even if it was most straightforward. She was in the habit of going off at a tangent. She tried to double-guess the questions, wondering where she was being taken. This sometimes gave the impression of disjointed answers. We were particularly concerned that she simply waffled. Many of her answers did not make sense at all. The claimant was evasive."
As far as the Employment Judge is concerned please note the following: He/she is to be addressed as "Sir/Madam" although the Employment Judge will not mind if a witness gets it wrong so long as the witness is polite. The Employment Judge will be taking a manuscript note of the evidence and it is a good idea to "watch the Employment Judge's pen", to give him a chance to take down your answers. If you see that the Employment Judge is writing notes and so is not keeping pace with what you are saying, slow down or pause. An Employment Judge will sometimes read his note back to you and ask you whether you think it is correct. You should not feel that you need to agree just because it is the Judge who is asking you. If the Tribunal adjourns for a break or lunch whilst you are giving evidence you are not allowed to speak to any of the other witnesses or to us. In effect you are sent to Coventry and you are not allowed to talk to anybody about the case until you have finished giving evidence and are no longer under oath. The Employment Judge will probably remind you of this if you are in this position.
Tribunal room layout talk to us Heather Mitchell +44 (0)20 7871 8511 heather.mitchell@brownejacobson.com Ian Deakin +44(0) 330 045 2265 ian.deakin@brownejacobson.com