This is a question that we received this week from a Claimant who’s currently pursuing her employer in the Employment Tribunal. If you’ve issued a claim for, for example, constructive dismissal then you’ll need to provide evidence at the Tribunal that supports your claim. This includes documentary and witness evidence. We’ll address the question by breaking it up into three elements:

  1. Do witnesses who have given witness statements have to attend the Employment Tribunal?
  2. Can I force a witness to attend the Employment Tribunal?
  3. What do I do if I think a witness is lying?

Do witnesses who have given witness statements have to attend the Employment Tribunal?

Witness statements are expected in England and Wales. Any witness that is to give a witness statement must have their statement presented to the Employment Tribunal in writing. If a witness has provided a witness statement then their evidence will generally only be fully accepted by the Employment Tribunal if the witness attends the Employment Tribunal hearing to be cross-examined on the evidence they have given – unless, that is, both parties (the Claimant and the Respondent) have given their consent for the witness to not attend. However, it is unusual for such a circumstance to arise as the other party will want to try and discredit the witness’ evidence or ask questions to clarify their own case. If the witness does not attend the Tribunal will read their statement but the weight attached to it will be limited.

Read more: How to prepare your constructive dismissal claim

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Can I force a witness to attend the Employment Tribunal?

The simple answer to this is: yes. There are two ways to achieve this:

  1. Ask the Employment Tribunal for a witness order to force the witness to attend as a witness for the Tribunal itself. Under Rule 10 of the Tribunal’s case management powers the Tribunal can order a witness to attend the Employment Tribunal hearing
  2. Ask the Employment Tribunal for a witness order to force the witness to attend as a witness to be cross-examined by the Claimant.

Whether this is advisable is a moot point. The witness may have relevant evidence to the case but they’re unlikely to be happy about being forced to attend an Employment Tribunal hearing to give evidence. The worst case scenario is that the witness turns into a “hostile witness” and actively attempts to sabotage the case that you’re trying to make.

Read more: Witness statements – how to draft them for the Employment Tribunal

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What do I do if I think a witness is lying?

It’s frowned upon to actually say the witness is lying in the Employment Tribunal. It should be enough to expose “holes” in their story and let their (hopefully) confused evidence under cross-examination sink their credibility as a witness. Every witness statement contains a statement of truth and should be signed by the witness. If it is proved that the witness has signed a witness statement which they know (or should know) contains untrue facts then this is a very serious matter.

Direct 2 Lawyers will put you in touch with employment solicitors who can give employment law advice to employees and employers.

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The Direct 2 Lawyers Employment Team post daily on interesting employment law cases, Employment Tribunal judgments and Employment Appeal Tribunal judgments. All of the Employment Team posts are written by qualified specialist employment lawyers

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