Mehta v Child Support Agency
Ms Mehta brought unfair dismissal proceedings against her former employer, the Child Support Agency (CSA). Ms Mehta was unrepresented at the two day employment tribunal hearing, while the CSA was represented by a barrister.
On the first day, two of the CSA’s witnesses read aloud their witness statements, were examined by the barrister, and were questioned by Ms Mehta and the panel. Due to concerns about time, the employment judge suggested that, on the second day, the witness statements of the CSA’s third witness and Ms Mehta should be “taken as read” (ie the tribunal panel would read them alone and they would not be read aloud). Ms Mehta did not object to this proposed approach and, on the second day of the hearing, she did not read her statement aloud, but responded to questions by the CSA’s barrister and the panel.
Ms Mehta’s claim was dismissed. She appealed this decision on the basis of procedural unfairness, claiming that she did not understand the implications of agreeing to witness statements being taken as read. The appeal focused entirely on the fairness of the procedure followed by the tribunal, and not on the substance of Ms Mehta’s claims.
The appeal was dismissed.
The Employment Appeal Tribunal (EAT) confirmed that the employment judge has responsibility for ensuring that any party, particularly a litigant in person, understands the implications of any choice or agreement that he or she makes. However, the tribunal had discharged that responsibility here. Where a tribunal has, making all proper allowances for a litigant in person, clearly posed a question and received an answer, it is not unfair to proceed on the basis of that answer, and a litigant in person must be treated as being responsible for what he or she says and does.
The EAT therefore found that Ms Mehta had agreed to the course proposed. This decision was influenced by the fact that she had had the opportunity to present her case in other ways (through cross-examination; through answers to her own cross-examination and questions raised by the tribunal; and in her closing submissions). The tribunal had tried to ensure that any parts of her evidence that were obscure and potentially relevant were clarified.
A number of useful observations were made in this case which will be important for those involved in employment tribunal cases:
- It is not a requirement in every case that witness statements be read aloud in full or at all.
- The appropriate procedure should be decided on a case-by-case basis at the tribunal’s discretion.
- It may be important to allow a litigant to read his or her witness statement aloud in person for a number of reasons, such as allowing the individual to feel that he or she has “had their say”; to assist in settling the individual before his or her cross examination; or to clarify his or her statement where it is technical or confused, or where it covers an event of particular significance.
- Tribunals that routinely do not allow claimants to read aloud their witness statements should revise that policy.
- The best course of practice is to proceed by agreement wherever possible, ensuring that any unrepresented party understands the implications of doing so.
This case is specifically referred to in the Government’s consultation on tribunal reform. The consultation says that a common criticism of employment tribunals is that cases take too long to hear and it proposes that witness statements should normally be “taken as read”, unless an employment judge directs otherwise.
Karen Macpherson, partner, DLA Piper
Practical guidance from XpertHR on witness statements in employment tribunals: