Going to tribunal: checklist

Sarah-Marie Williams of Clyde & Co continues a series of articles on going to tribunal with a checklist for the preparation and attendance of witnesses. :

1. Ensure that all witnesses put the hearing dates in their diaries and keep the dates free. 

Once a hearing date has been agreed it is difficult to change it. An employer will need a very good reason (for example, unforeseen circumstances) for the tribunal to change the date.

2. Visit the tribunal with the witnesses before the date of the hearing if possible.

This will give the witnesses an idea of what to expect and the layout of the tribunal. It should make the experience of being a witness less daunting.

3. Make witnesses aware of the constitution of the tribunal panel.

Employment tribunal claims are heard by a panel of three. The panel constitutes a legally qualified employment judge, and two lay members. One of the lay members will be from an employers' organisation (for example an employer's federation) and the other will be from an employees' organisation (for example a trade union). The employment judge will sit in the middle of the panel with a lay member on each side.

4. Ensure that all witnesses are provided with the relevant documentation.

Witnesses should be given copies of all the witness statements (including the witness statements from the other party to the case) and the previously agreed bundle of documents that is to be used at the hearing. Having all the relevant documentation will assist witnesses in their preparation for the hearing.

5. Ask witnesses to practise reading their statements out loud, and to familiarise themselves with the contents.

It is common practice in the tribunal for witnesses to be asked to read their statements to the panel. Alternatively, the statementsmay be 'taken as read'. This means that the tribunal members will either read through the witness statements before the hearing starts or read the statements to themselves during the hearing.

6. Ask witnesses to make themselves familiar with any documents referred to in their witness statements.

When reading their statements, witnesses will be interrupted and asked to turn to pages in the bundle of documents. This enables tribunal members to read the documents that are referred to in statements. When giving evidence at the hearing, witnesses may be asked to comment on these documents.

7. Ensure witnesses bring the witness statements and bundle of documents with which they have been provided to the hearing.

During the hearing all witnesses are permitted to sit in the tribunal and listen to the course of events. If witnesses have copies of the statements and the bundle they will be able to keep up with the proceedings, follow the evidence and look at the documents being referred to. If, during the hearing, a witness hears something said by the other side that he or she believes to be incorrect, he or she can pass a note to the representativeacting on the employer's behalf.

8. Remind witnesses to provide the case title and case number to the tribunal reception on arrival and identify themselves as witnesses.

Witnesses will then be directed to the respondents' waiting room where a tribunal clerk will ask them whether, when they are called to give evidence, they will be taking a religious oath or giving an affirmation. Witnesses taking a religious oath will be asked on which book (for example the Bible or the Koran) they wish to take their oath. Witnesses should be aware that they will be in contempt of court if they do not tell the truth when giving evidence.

9. Advise witnesses that during the hearing they may be asked questions by the employer's representative (examination-in-chief), the representative for the other party (cross-examination), the employment judge or the lay members of the tribunal.

Where witnesses do not understand a question, they should feel free to clarify what is being asked. Witnesses should speak slowly when giving their evidence and direct their answers to the employment judge. They should be aware that the employer's representative may interrupt cross-examination if the question is considered to be irrelevant or if it does not make sense. The employment judge may also interrupt to query the purpose of a question.

10. Advise witnesses not to discuss the case where there is a break in the hearing while they are giving evidence.

Where there is a break during the day or the tribunal adjourns until the following day and a witness has not finished giving evidence, that witness is still 'under oath'. This means that he or she is precluded from discussing the case with anyone. When the witness has finished giving evidence the tribunal will usually confirm that the witness is 'released' and he or she will then be free to discuss the case.

The next topic of the week article will be the first in a series on accidents at work and will be published on 11 February.

Sarah-Marie Williams is a solicitor in the employment team at Clyde & Co (sarah-marie.williams@clydeco.com)

Further information on Clyde & Co can be accessed at www.clydeco.com