It is entirely natural to feel nervous about appearing as a witness, but is it really as bad as you fear? Not if you come prepared. Solicitor Helen Darnton, pictured above, looks at what a witness for the respondent can expect at a hearing.
If you are going to be a witness, you will be asked to prepare a witness statement. Take your time to make sure this is accurate and thorough as it will form the main part of your evidence, which you will give under oath.
Ask for a copy of the bundle of documents that will be used at the hearing so that you can familiarise yourself with it beforehand. You don’t have to memorise anything as the bundle will be in front of you when you give evidence, but being familiar with the documents will go a long way to avoiding you being caught out.
The day of the hearing
When you arrive at the tribunal you will be shown to the respondents’ waiting room where you will be asked whether you prefer to swear on the Bible, another holy book or to “affirm” that you will tell the truth. It does not matter which you opt for.
When you go into the tribunal room, you will see a table set out at the front for the judge and panel members. In unfair dismissal cases judges often sit alone, whereas in discrimination cases there will be a panel of three: a judge and two lay members who are not legally qualified.
One of the lay members will be from an employee representative or trade union background and the other will be from an employer representative or HR background. Decisions are made by majority so the two lay members could potentially overrule the judge, although this is rare.
The claimant’s and respondent’s representatives sit in front of the panel with seats for witnesses behind them, as well as on the side for when the witness gives evidence. It is a public forum, so anyone can sit at the back and listen – including reporters – but try your best not to be concerned by this.
Once any preliminary points have been made by the judge, the first witness begins to give evidence. In discrimination cases the claimant usually goes first; in unfair dismissal cases, however, it is usually the other way around. The order of evidence depends on the legal issues and burden of proof.
When you are called forward to sit at the witness table, you will first be asked to swear an oath that you will tell the truth.
If the judge hasn’t already read your witness statement you may be asked to read it out loud. You will then be cross-examined by the claimant’s representative, which is the challenging bit. Don’t take anything personally; it is their job to discredit your evidence. Remain composed and take a deep breath if you start to feel yourself getting riled or frustrated, and don’t be afraid to take a moment and think before answering the question – there is no rush.
One of the most important points when you are a witness in an employment tribunal is to take your time to consider the question. It sounds obvious, but many people are inclined to try and answer the question they think ought to have been asked or that they wish had been asked. It can be very tempting, but this isn’t helpful for the tribunal judge.
Sometimes witnesses can become obstructive or defensive, which makes it appear as if they have something to hide. Remember that it is not an exam or a memory test; if you can’t remember or you have no knowledge of something, it is absolutely fine to say so.
Likewise, if you can’t remember something but think that the answer is in the documents, it is absolutely fine to ask for a minute to check before you answer.
The key to being a good witness is to be helpful. If the judge or any of the lay members ask you something after the cross-examination, answer as helpfully as you can. Do not read too much into whether or not you get asked questions and how many you are asked as neither are an indication of how “well” you have given evidence.
When the cross-examination is over, your own representative may ask you further questions to clarify any points raised. Again, do not read too much into this.
Finally, there is etiquette: Refer to male judges as “sir” and female judges as “madam”.
If you are still nervous, it is worth taking the time to watch a tribunal hearing before you have to go yourself. These are public and if you explain to the clerk why you are there, they can direct you to an appropriate hearing.
Helen Darnton is an associate at Clarion