You are in the run up to an employment tribunal hearing and your witness has left the business. Whether that be under a cloud or hopefully on good terms, here’s what to do:
Ask yourself – what were the circumstances under which that person left?
If that person left with the relationship intact, we are in a much better position to be able to encourage them to attend. We can also have some confidence that the evidence they give will be supportive of the companies’ case.
If unfortunately, that person left under negative circumstances, we would only recommend looking to engage them in the hearing if their evidence is absolutely key. The reason for this is simple – having a witness who isn’t on good terms with the company could be a risk. Whilst the employer can work with that individual to prepare a witness statement and ask specific questions to draw out the evidence that supports the company’s case, they can’t then control what is said under cross-examination. The risk is that the employee goes off script, and/or discloses things that don’t help when being cross examined by the other side.
So, review the case and establish how important they are and whether there is any other way to get that evidence. Remember to talk to your employment law team to help formulate a plan.
If you do find yourself witness-less, it’s always best to be upfront about the reasons why. Tribunals appreciate that individuals leave organisations, they also understand that it’s not top of everyone’s list to come back to attend a tribunal hearing!
If there is an absolute need to have that person, there is the option to go down the route of a witness order. Remember what we said earlier about having a witness on negative terms though. Our saying at Vista HQ is ‘a reluctant witness is a bad witness’ – so approach with caution.
That’s not to say witness orders can’t be used. They are much more effective when you have someone who would like to be there but is having difficulties on a practical level. For example, if they are struggling to be released from their job. In this circumstance a witness order will assist them in explaining to their employer why they need that time off.
Can you pay a witness to attend a hearing?
We’d always advise to focus any payment on expenses only. We don’t want someone to be out of pocket to attend a hearing, but we also don’t want someone to appear incentivised to attend in such a way that it could call in to question the credibility of their evidence. So, if there is any talk about payment of any sort, it should be about the losses that person makes as a result of attending the employment tribunal hearing.
How to prepare your witnesses for the employment tribunal
We’re often asked by our clients what are the best ways to prepare witnesses for the tribunal. Whilst as lawyers there is a limit to what we can do here – we can offer some advice based on experience. To save you reading any more, we recorded a chat with our Chairman Darren (called to the bar in 2000) and Abi Alemoru, who has over 25 years’ experience of employment tribunal advocacy. Here’s what they had to say, or if you prefer the medium of video, watch below:
If you are earlier on in the employment tribunal process – try this checklist. It outlines the key HR responses required during the employment tribunal process alongside some inside tips from our employment lawyers.