Witness Statements For Employment Tribunals

Drafting witness statements for employment tribunals can be a difficult and daunting task. Before a person is eligible to give evidence at the Tribunal, they must first draft a witness statement.

Witnesses usually mutually exchange their witness statements 2-4 weeks in advance of the hearing.  This means you do not get to see the other side’s witness statement before drafting your own.

The Purpose

The purpose of a witness statement and the role of a witness is to give their account of what happened.  This usually means introducing relevant evidence (referring to documents) and filling in the gaps created by the documents.  For example, giving context to the documents or giving evidence on matters not covered by the documents, such as conversations.

The Tribunal requires witness statements so all the parties (which includes the Tribunal) are aware of what each side’s case is in advance. If you are the Claimant, you should also think very carefully before calling any other witnesses in addition to yourself. The general rule is not to, unless they are needed for a crucial point.

Drafting a Good Statement

Drafting good witness statements for employment tribunals is difficult and takes a lot of time. In general, witness statements are usually too long or too short.  It is difficult to strike a balance, but either way, a good and detailed statement takes a long time to produce, so give yourself plenty of time.

A good witness statement will usually contain the following:

An Introduction.

1. 1. Say what the witness will be talking about and how they fit in.  For example, at the outset you may identify yourself as the Claimant, list the claims being made, give your dates of employment and explain your position within the company. 

Use simple language and short paragraphs.

1. 1. This cannot be overstated. 
   2. This makes it easier to refer to parts of the statement both in advance and at the Tribunal.  For example, it is very difficult to discuss a sentence in the witness statement if the relevant paragraph is half a page long.

Balance the Length.

1. 1. Avoid discussing points that are irrelevant, but don’t miss anything out. It is usually wise to make a list of all the things that should be included and tick them off one by one. The “list of issues,”  if there is one, is useful for this.
   2. You need to consider carefully exactly what the case is about and what is in dispute.  If the statement talks about points that are not related to the claims or facts that are not in dispute, then consider if you can delete it.

It must be in chronological order.

1. 1. No exceptions and no repetition.

Cover the legal test.

1. 1. This does not mean refer to the actual legal test, but have it to hand and make sure all the limbs are covered by the evidence given. If you are not sure of the legal test, find out. It will require research and hard work, but if you don’t understand the law relevant to your claim, how can you expect to convince a Judge that the relevant law has been breached?
   2. As stated, don’t actually quote the law.
2. Use Headings. This is important to break up the text and assist with navigating the document. If you can think of anything to make it easier for the reader to follow, do it.

Don’t Quote chunks of documents.

1. 1. Let the documents do a lot of the talking.
   2. If the statement says, on x date I wrote a letter to Mr Jones (see page 52), the reader is being invited to read the letter on page 52.  Why then, in the subsequent paragraphs, would you quote sections of the letter the reader has just read?
   3. This can also insulate from cross examination, because there is a lower chance of creating inconsistencies between the statement and the documents.

Don’t flag the inconsistencies in the other side’s case.

1. 1. As said, the witness is to give their account.
   2. This will also put the other side on notice of the points you intend to raise in cross examination.
   3. The exception to this may be if you are confident that the case will settle, in which case it might not be an idea to document inconsistencies.
   4. Another exception may be if a witness cannot attend Trial.  

Deal with Difficult Issues.

1. 1. It is always better to deal with problems head on.
   2. Think about the cross examination of a witness statement silent on a problem, compared to a witness statement that deals with the issue head on, for example:
   3. “I accept that I did not appeal the decision to dismiss me, but this is not because I did not want or think that I had been badly treated. I had been so badly treated up to this point and my grievance had still been ignored, so I knew that an appeal would make no difference.”

Deal with all the claims.

1. 1. It is easy to forget the little claims. Double check so you don’t lose by default because you forgot to give evidence on the issue (for example, unpaid holiday).

Witness Statements For Employment Tribunals – Other Key Points:

• Make sure you / any witnesses on your behalf understand the importance of the document and that they check it very, very carefully.
• Get familiar with the bundle and particularly the documents you refer to in your witness statement. If you have any witnesses, ensure they do the same.
• Read your statement over and over before trial.  Imagine reading it out in court and then being asked if you are completely happy with it.
• Start early and leave enough time to prepare. 
• As stated, think very carefully about calling any additional witnesses.
• Witness statements are to be mutually exchanged with the other side (so you send them to each other at the same time). You must liaise with the other side (or their lawyer) about how this will happen in practice. If your statement is ready, don’t just send it to the other side, as they may read it before sending you their statements (if you really want to get it sent off, you can always send a password protected version and release the password when you receive the other side’s witness statement

Online Course

You may be interested in an online course that walks you through drafting a witness statement, which includes a witness statement employment tribunal template.

You can learn more about the witness statement course HERE.

Disclaimer

This blog is for information purposes only. Nothing should be relied upon as a substitute for legal advice and nothing written should be construed as legal advice or perceived as creating a lawyer-client relationship.