1. Most cases are won or lost on the evidence presented, rather than because a witness performed badly on the day. In cases of dismissal, the Judge will want to know why you decided to dismiss, what evidence you relied upon and whether you considered any alternatives.
2. It can be helpful for you to consider at an early stage how the decision that you reach will “look to a judge”.
3. It can be difficult for a dismissing or appeal manager to remember and therefore explain, exactly what thought processes he/she went through before reaching a decision unless there is a record of it. This can be in the form of a properly worded dismissal letter which sets out in some detail what evidence was considered, any mitigation raised and whether alternatives to dismissal were considered and rejected and the reasons for this.
Understand the case against you
4. Carefully review the ET1 claim form and understand all of the allegations made against your company. Make sure the response deals with each of these.
5. If an allegation is true, accept it and if it is not, set out in brief your version of events. If you simply deny all of the allegations, you may irritate the Judge and damage your credibility.
Start to collect evidence
6. It is extremely important to gather all contemporaneous documents to support your version of events or undermine the employee’s case against you - BUT you cannot “pick and choose” what evidence you disclose.
Prepare witness statements carefully
7. Decide who you need to give evidence to support your defence. In an unfair dismissal claim you will normally need the dismissing manager and appeal manager to give evidence to explain why they reached their decisions, and sometimes (although not normally) the investigating officer will also need to give evidence.
8. The statement should set out the witness’s own version of events in full and cross reference any relevant documents. The witness must be comfortable with what is written and can lose credibility if it is obvious that they have had minimal involvement in the preparation of their statement.
How to deal with unrepresented claimants
9. Many Claimants represent themselves both in the run up to, and at the hearing. This can be frustrating and you may find that you are expected to do much of the work to get the case ready for the hearing, such as preparing the bundles etc. Be co-operative – it will help you to look like the reasonable employer you are.
Prepare for the hearing
10. It is not necessary for your witnesses to memorise the documents in the bundle. They will be taken to all relevant documents during their evidence. Witnesses should read their statements ahead of the hearing and all relevant documents to make sure that they are fresh in their minds.
11. In most cases the witness’s evidence in chief (that is the evidence set out in their statement) will be taken as read. This means that the witness will not normally read out their statement and will be cross examined by the Claimant’s representative as soon as they are called to give evidence.
12. Many witnesses are anxious about what to wear. It is best to be neat and tidy, but there is no need to wear a suit unless that is normal attire for the witness. In some cases, it is more appropriate for witnesses to wear their work uniform.
On the day
13. Make sure all your witnesses know where the Tribunal is located and what time they are expected to arrive.
14. Remind your witnesses not to discuss the case in public areas, such as the lift, outside the building in the smokers’ area, the local coffee shop etc, to avoid sensitive information being inadvertently overheard by the Claimant, a member of their family or legal advisor.
15. In unfair dismissal cases the Judge sits alone. In other cases, including those involving allegations of discrimination, the Judge is joined by two wing members. It is customary to refer to the Judge and any panel members as “sir” or “madam”.
16. Please stand whenever the Judge and panel members enter or exit the room.
17. There will be a separate table where witnesses sit to give evidence. The table will have a copy of the tribunal bundle and witness statements. Witnesses cannot use their own copies.
18. Each witness will be asked to confirm their name and address and that the statement in front of them is the statement they have given in the proceedings. The answer should be yes, but if there are any mistakes, this is the time to speak up.
19. Give honest answers. It is better to be upfront about the weaknesses of your case rather than attempt to cover them up. You are not expected to be perfect.
20. It is better to keep your answers simple and to the point – answer the question directed at you, clarify points where necessary, but do not waffle. If you do not know the answer to a question, say so. Do not pretend that you do, or make something up and if you feel it would be helpful to refer to a document to assist you, please ask to do so.
21. Speak slowly and clearly and do not allow yourself to be hurried. Go at your own pace. Do not get angry or get drawn into a “slanging match” with your cross examiner – it’s their job to try and undermine your evidence and make you look bad. Don’t make it easy for them. Stay calm and collected.
22. Remind your witnesses to act respectfully at all times. They should not react loudly to evidence they disagree with (by shouting “that’s rubbish” etc, or by dramatically shaking their heads, tutting or sighing or storming out etc). If an issue arises that you or one of the witnesses disagree with, discretely pass a note to your advocate or wait for a break to speak to him/her.
23. If you and your witnesses remain calm and polite throughout the hearing, the Judge will have a good impression of your organisation. Whilst that isn’t enough by itself to win a case, if the evidence boils down to which version of events the Judge believes is more likely, this may tip the balance in your favour!
- Chris Tutton