Continuing our series focussed on the employment tribunal process, we’re looking at how to write a good witness statement.
At this stage of the employment tribunal process all the evidence has been disclosed and agreed within the Joint Bundle. We look at what’s involved in document disclosure here.
What is the role of a witness statement?
The role of the witness statement is primarily to address the issues that the employment tribunal will need to determine at the hearing. The witness statement is an employer’s way of setting out their stall and will discuss the reasons why, and the evidence for, the employer to successfully defend their claim.
Importantly, a good witness statement will address all the legal and factual issues to be considered during the hearing and will relate back to the evidence disclosed within the Joint Bundle.
So, what does a good witness statement look like? We asked Claire Rosney, a Senior Employment Lawyer here at Vista…
1. Tell the Tribunal a story
Your witness statement is essentially a story to the tribunal. It’s your first-hand account of what has happened to bring you to the tribunal.
As the employer, it’s your job to provide a good narrative. You should include details of the organisation, what you do and how large or small you are. It’s also important to include a description of the other party and describe your relationship with them.
Remember that the tribunal will have no knowledge of your organisation or the situation leading up to the hearing, so be sure to give them the full picture.
2. Keep it simple and relevant
Set out your stall simply. Go through what happened chronologically so that it is easy to follow. Make sure you include a description of any process or training requirements that are relevant. For example, if an employee has been dismissed for breaching a specific rule, describe the rule and what is required, and why it is so important to your business.
Give details or an explanation of any abbreviations or phrases specific to your organisations, a ‘BYOD’ policy may mean something to you, but it won’t necessarily mean anything to the Tribunal.
Keep your witness statement relevant to the issues the Tribunal have to determine. For example in an unfair dismissal case, demonstrate clearly that there was a fair reason for the dismissal, and why you believe you acted reasonably within the circumstances.
3. Include details of any relevant policies and procedures
Again, the key here is relevance. The Tribunal will not thank you for telling them about every policy your Company has if only one or two are relevant to the issues in the case.
Similarly, you don’t need to refer to (or include) in the Joint Bundle the entire 150-page staff handbook if you are only going to refer to two pages of it. Just include the relevant pages and refer to them clearly.
If you are working with a professional representative, they will determine what is relevant for the Tribunal to consider.
4. Cross reference the evidence to your Joint Bundle
When referring to the evidence in the case, ensure you clearly cross reference to the Joint Bundle. For example, if you are relying on a breach of a policy (such as bullying and harassment), refer to the specific page in the Joint Bundle that sets out the rule or definition.
Likewise, you do not need to set out verbatim in your witness statement of everything that was said in a disciplinary, grievance or appeal hearing if you have included the minutes in the Joint Bundle. Rather than setting out every “if” “and” and “but” that was mumbled during the hearing you could just say “the grievance hearing took place on X date; X chaired the meeting, X was present in a HR capacity and X was accompanied by X. A full and accurate minute can be found at page X of the Bundle”.
Of course, this only works if you have good notes of the hearing but that’s a topic for another day!
5. Honesty is the best policy
What a lot of employers don’t realise is that within disclosure, both parties need to include evidence that may go against their case. You can’t just cherry pick the documents that help your case, we’re sorry to say!
Witness statements need to be an honest portrayal of what actually happened. Therefore, you can’t say something that is not true (well you could but that would be perjury). It’s not helpful to conveniently forget to mention something that may not be entirely helpful to your case if it needs to be addressed.
If there are documents of this nature, your witness statement is your opportunity to provide an explanation or some context around that. In our experience, it is always better to deal with these things in your statement and give that explanation upfront as inevitably you will be asked about them at Tribunal.
For more information, tips and tricks on managing the employment tribunal process like a pro, download our employment tribunal checklist, which outlines the key HR responses required during the tribunal process, and some tips from our employment lawyers.