Witness statement

Witnesses give evidence on matters within their own experience and about which they can reasonably comment. Witnesses can give hearsay evidence — that is information told to the witness by someone else. However, although hearsay evidence will be admitted by the tribunal, the tribunal will give it less weight than information from a witness on something s/he experienced him or herself.

In England and Wales, a witness’s evidence used to be given by the individual reading out their written witness statement. However, that practice is no longer standard and instead witnesses’ statements are taken as read.

The system in Scotland is different. Specifically, a representative will ask non-leading questions of the witness — i.e. open questions which don’t imply a specific answer. For example, “It’s right that at that meeting, x told you that the outcome of the consultation had already been decided”. Also, unlike in England and Wales, witnesses are not permitted to sit in on other witnesses’ evidence until they have themselves given evidence.

The claimant’s witness statement must include reference to all relevant matters upon which the claimant relies. In other words, where a matter is important to the claimant’s case, comment must be provided by the relevant witness. Failure of a witness to comment on a material issue may mean that the tribunal finds that no evidence or insufficient evidence has been provided to support an accusation. This can result in the employer’s evidence being accepted on the basis that it’s uncontested.

The claimant’s witness statement is therefore a vitally important document and it is worth spending time perfecting it. While questions designed to illicit information supplementary to the witness statement can be put to the claimant by his or her representative, they are usually limited to unforeseen matters or matters arising out of the respondent’s witness statements.

In order to fairly reflect all the information necessary, witness statements can become quite lengthy. As such, it is customary to number the paragraphs in a witness statement. Failing to do this will make it more time-consuming to direct witnesses or the tribunal to the relevant passages.

Tribunals usually order that witness statements be exchanged simultaneously. That is, that both parties hand over their statements to each other at the same time. This requires you and the employer’s representative to have the statements ready to send (for example, via email with attachments prepared). You and the employer’s representative may then arrange to speak on the phone and confirm that you are ready to send each other the documents, before proceeding to do so.

An example witness statement is available for subscribers to download at the LRD website: www.lrdpublications.org.uk/download.php. Others can be viewed at various legal and consumer advice websites including the Consumer Action Group: www.consumeractiongroup.co.uk and the Legal Action Group at: www.lag.org.uk