Guidance for an Employment Tribunal
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Before the hearing
Become familiar with your witness statement and any documents it refers to. It is a good idea to re-read your statement the morning before you appear as a witness so that it is fresh in your mind.
If there are any words in your statement or in associated documents that you are unable to define, look them up in a dictionary before the hearing. Sometimes a questioner will ask a witness what something means. This preparation can be helpful and boost your confidence.
Ensure that you know the correct time of the hearing. They often start at 10am but not always. It is wise to arrive at least 10 minutes before the hearing time to check which room your hearing will be held in and the names of the panel members.
In making arrangements for transportation etc. be aware that a typical tribunal working day starts at 10am and ends at 4pm with an hour for lunch from 1pm to 2pm. If time is short for the evidence to be covered the working days are sometimes extended by agreement.
At the tribunal
Be aware that you are on view at all times and may be seen and heard by members of the tribunal panel and tribunal staff even when you are not giving evidence. Everything you do influences the way others perceive you and your case. Try to give the best impression at all times while you are on public display.
Additionally, be aware that what you say to other witnesses or the lawyers in your party may be overheard by the other side’s witnesses and lawyers. Proceed cautiously. There are usually separate Respondent and Claimant rooms where witnesses from either side wait when not in the tribunal room. This means that you do not have the embarrassment or awkwardness or being with the “opposition”. Even if you are friendly with members of the opposition it is better not to converse with them until after the hearing. When you are in your room bear in mind that there may be strangers present.
Layout of the tribunal room
You will normally be allowed into the tribunal while other witnesses are giving evidence so you can see the layout of the room and the way that evidence is given.
When called to give evidence, you will be directed to the witness table towards the front of the room at the side, where you may sit.
A panel of three people sits at the front of the tribunal room on a raised platform. In the middle will be the employment judge.
The employment judge is generally the only legally qualified member and will be either a solicitor or a barrister of at least seven years’ experience. If you need to speak to the judge, call him “Sir” or her “Madam”. To speak about the judge, refer to him/her as “the judge”.
The other two “lay” members of the panel will come from opposite backgrounds. They are there to contribute balance and to bring practical knowledge of the workplace and industrial relations. One will come from an employer background and the other from an employee background such as a trade union. The intention is that each panel member is non-partisan. They can be referred to by name or as “colleagues” of the judge.
The court clerk will administer the oath that the evidence given will be the truth, the whole truth and nothing but the truth. You read from a card. Whatever your religion, the tribunal will have the relevant religious book to enable you to take the oath. If you prefer, you can make an affirmation instead of an oath.
Your witness statement
If you haven’t already done so, you will be asked to sign your witness statement before being questioned.
A witness statement is a formal document and will usually have been drafted by a lawyer. This is standard practice. If you are asked in cross-examination “Did you write this yourself?” do not say that you did when this is untrue. Some witnesses are caught off balance by this sort of question because they assume that it will be thought improper if they tell the truth. Have no fear: if you worked with your lawyer to produce your statement, say so. Ideally, you won’t be in a position where you say that your lawyer not only wrote your statement but also invented its contents!
Often witnesses are asked to read their statements aloud to the tribunal. Afterwards you will be asked questions about your evidence. Whether you are asked to read your statement will depend on the time available.
Once you start giving your evidence, you should not discuss your evidence with anyone from your legal team or indeed with anyone. This rule applies during any lunch time adjournment and overnight if you do not complete your evidence by the end of the day. If you are not giving evidence you are free to discuss the case, but take care what you say in or around the tribunal: you could still be questioned about anything that is overheard.
In cross-examination the other party or the other party’s representative asks you questions based on your witness statement.
The aims of the cross-examination are to discredit you as a witness, to undermine or neutralise your evidence, or to get you to change it. This is no cause for alarm as most advocates are pretty average and not of the standard you will have seen on TV and in films. Nevertheless, be aware.
Advocates do not ask questions because they want to know your answers. A good advocate already knows how he wants you to answer and he will attempt to control your answer so that it comes out in a way that supports his case. The golden rule for advocates is that they should never ask a question they don’t know the answer to. If an advocate doesn’t know what a witness is likely to say there is a danger that the witness will say something the advocate doesn’t like. For this reason the better advocates are unlikely to ask you to comment in a general way on the evidence or for your opinion. They don’t want to know and they don’t want the panel to hear your opinions either. Your lawyer, on the other hand, will be happy if you do the very opposite. When you get an opportunity and it seems appropriate, exercise your right of free speech.
All advocates are there to persuade the panel. In answering questions you are really speaking to the panel and not the advocate. Look at the panel when you answer questions. It helps to make eye contact with the panel. Be aware of the panel at all times and do not be controlled by the advocate. Certainly do not allow yourself to be pushed into saying something that isn’t entirely true or of which you are not certain.
The advocate is trying to get you to say things in front of the panel which in some way support his argument or case theory. At the same time he will not want you to say anything that damages his case. You often see examples on TV or film of advocates saying to the witnesses that they just want a “yes” or “no” answer. That is usually because a simple “yes” or “no” will give the limited view that they seek to present without explaining the larger reality. As we know, reality is often far more complex than the version witnesses are allowed to express.
Your evidence may be subject to attack or an attempt to obtain concessions. The questioner may use such phrases as:
- “You’re not really saying that, are you?”
- “Have you taken account of this?”
- “We can agree on this, can’t we?”
Try not to appear evasive or unwilling to give a straight answer.
This is the art of cross-examination. A leading question leads the witness to the answer that the advocate wants. It is the opposite of an open question, the answer to which could be almost anything. Leading questions often take the form of a statement followed by “isn’t that so?”, “that’s right, isn’t it? “didn’t he?”, “doesn’t it”, “agreed?”, “correct?” A leading question gives the answer so that all the witness has to say is “yes” or “no”. The advocate has control: while they make all sorts of statements to further their case they try to limit you to a mere “yes” or “no”.
They don’t usually ask, “Did the cat sit on the mat?” or “Where was the cat?” Instead they ask, “The cat sat on the mat, that’s right isn’t it?”
Be aware of this and, if appropriate, resist.
Referring to documents
On the witness table are ring binders containing documents related to the case. These documents are collectively known as the “bundle” or “trial bundle”. Each page is numbered. Your witness statement will be open in front of you while you give evidence so you can refer to it and someone will be there to hand documents to you if necessary.
Do not answer questions about the content of documents without seeing them. Feel free to ask if there is a document you can look at which relates to a particular point. Do not answer until you feel you have had enough time to review the document referred to.
Listen carefully to each question asked of you. If you do not hear the entire question or understand it, ask the questioner to repeat it. Do not try to answer until you have heard and fully understood the complete question. Ask for clarification of the question if you are not sure what you are being asked.
If the question includes a fact with which you do not agree, do not try to answer the question. Simply tell that questioner that you do not accept the fact.
If your representative objects to a question put to you or interrupts the questioner, do not answer the question or say anything further until you are told that it is all right to continue. If you cannot remember the original question ask for it to be repeated.
People may continually enter and leave the tribunal room. Do not allow this to distract you while you are giving evidence:
- Keep your answers simple and short;
- Answer only the question asked and answer as briefly as possible; and
- Do not volunteer information not needed truthfully to answer the question put to you.
If you feel that you are being forced to give an impression that doesn’t accord with the truth, feel free to resist the questioner and to say what he doesn’t want to hear. Judges are aware of the advocacy game and are often gratified when witnesses break through the limitations of the questions asked and give the fuller picture. However, do not do this excessively.
Speak slowly and clearly. You can set the pace with which you feel comfortable. Judges are only human and the rule that advocates work to is to follow the pen or laptop of the judge. When a judge is struggling to write down your evidence you can assist by slowing down the speed of your answer. You care about what the judge and the panel think, not the opposition’s questioner.
If you can’t remember
If you do not remember a certain matter or event, then you may answer by saying “I do not recall that” or “I cannot now recall that”.
All, interrogators, salespeople and advocates know the power of silence. After you have answered a question, stop talking. Stay silent until the next question. Do not feel compelled to fill any silences or to elaborate on an answer or say anything further because, for example, the other side’s representative is silently staring or smiling at you or is nodding his head. Silence creates pressure. Under pressure people say things they would rather they hadn’t. Don’t fall for it.
Do not exaggerate in answering questions. It is important not to answer questions beyond your knowledge or expertise. Avoid using absolutes such as “never” or “always”.
Resist others’ expectations
Do not be tempted to tell a story that you think the questioner wants to hear. Be true to your evidence and what you understand of the truth.
The questioner may make a statement and then pause waiting for you to agree. Just wait for the question.
Address the panel
Keep eye contact with questioner while you listen to his question, but direct your answers to the panel. The panel makes the decision. What anyone else thinks is irrelevant to the outcome.
Questions from the panel
If asked a question by a member of the panel, listen carefully. Supplemental questions from members of the panel are common. The panel ultimately makes the decision and its members often think of useful questions to clarify issues to be decided. These questions sometimes give useful clues as to how the evidence is being perceived.
Do not pose a question (unless to obtain clarification about a question) or seek to argue a point. A typical riposte from an advocate is, “You are her to answer my questions, not the other way round”.
Don’t anticipate the question
Don’t try to read into the question – just answer each question in turn.
Leave it to your lawyer to object to any improper questions.
If any matters need clarification after cross-examination – for example, because something you said was inconsistent with your witness statement – your lawyer can raise these in re-examination. Often re-examination does not take place: if it does and you are referred to certain evidence or documents then this is an indication that it is the issue which these documents deal with, that needs correction or clarification. Listen carefully at this stage. Your lawyer will try to repair any damage caused in cross-examination.
Justice and standard of proof
The adversarial process is not about justice but about one side winning and the other losing. Forget noble ideals: they aren’t central to the process although they may motivate lawyers, witnesses and panels. The question is always which side is more credible. The panel asks itself whether the argument they have heard is more likely than not to be true. Lawyers refer to this as the “standard of proof”. Everyone has heard of the criminal standard: “beyond reasonable doubt” (or virtually certain). In civil cases (such as are heard in employment tribunals) the standard is whether the argument is true on “balance of probabilities” or more likely than not to be true. It is a lower standard that is easier to satisfy.
Behaviour at the hearing
It is important to maintain a pleasant but formal demeanour at the hearing. The panel have a short period of time in which to determine the factual basis of the claim and to form impressions of those involved. Your concern should be to behave well and to make a favourable impression as you would at work. Panels are only human and are inevitably influenced by the way you they perceive your character from the way you present yourself.
Do not let the questioner’s behaviour affect you. Confidence increases your credibility and persuasiveness. Try not to show anger or resentment in reaction to any questions even if you feel unfairly harassed; the judge or lawyer will intervene if necessary and you should wait for him to do so. Do not be intimidated by questioner’s tone of voice or actions (like table pounding, sarcasm or impatience).
Do not verbally spar with questioner or try to show that you know more than him.
While it is not necessary for you to wear formal clothes such as a suit, you should dress smartly and tidily. Avoid clothes which are fussy or uncomfortable. The court should be concentrating on what you are saying, not wearing.