Employment tribunal reforms (5): witness statements

In our series on particular aspects of the Government’s employment tribunal proposals, we look at the suggestion that witness statements should be “taken as read”.

What are the proposals?

Witness statements would normally be “taken as read”. Unless an employment judge directs otherwise, a witness statement would stand as the evidence-in-chief of the witness concerned and it would no longer be read out in its entirety.

Key points of the proposals

  • This proposal is limited to employment tribunals in England and Wales. It does not relate to Scotland, where witness statements are not normally used.
  • In most, if not all, employment tribunal cases, evidence needs to be taken and heard from witnesses. The testimony helps the tribunal to understand the facts in the case and draw its conclusions about what really happened.
  • Copies of the statements are sent to the tribunal and exchanged between the parties at an early stage of the tribunal process.
  • However, despite the fact that the parties should be familiar with each other’s witness statements, this testimony becomes part of the evidence presented by the respective parties before the full employment tribunal hearing.
  • Witnesses are asked to read the content of their statement out loud, so that the tribunal can see and hear the evidence presented orally. Cross examination can then follow.
  • It is proposed that, unless an employment judge directs otherwise, a witness statement would stand as the evidence-in-chief of the witness concerned and would no longer be read out in its entirety.
  • The employment judge could make exceptions where:
    • a witness would benefit from reading some or all of the statement, in advance of being cross-examined, for example to ensure that an unrepresented party is not compromised by having to rely on written testimony without further clarification; and/or
    • the employment judge feels that the evidence-in-chief should be read out, in whole or in part, to assess its weight and merit.

Pros

  • There is a lack of consistency, often dependent on where the tribunal is located, as to when witness statements are taken as read. Tribunals would benefit from a more consistent approach.
  • In the civil courts, written statements are accepted as the evidence of the witness making the statement and do not have to be read out. There is no strong reason why employment tribunals should be different.
  • In some cases, it can take the tribunal many hours, and even days, to hear the evidence. This proposal would save time, and therefore money, in tribunals.
  • It is often a waste of time, as the parties should be familiar with each other’s witness statements anyway.
  • The Employment Appeal Tribunal has already given its approval for witness statements to be “taken as read”, in Mehta v Child Support Agency EAT/0127/10 [subscription required to access the individual report] so this proposal would simply make official something that has already been given judicial approval.

Cons

  • It is important, especially in complex cases, that all parties get a fair chance to put their arguments. It is to be hoped that judges take a flexible approach and allow testimony to be read out if, for example, a reminder is needed of its contents in a complicated case with many witnesses.
  • The rules should be made clear and some leeway given to litigants-in-person, who may want to feel that they have “had their say” or need to hear the other side’s testimony if they are not used to familiarising themselves with witness statements or the evidence is technical or confused.

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