The difference between good and bad witness statements can be the difference between winning and losing a case.
The preparation for witness statements should start right at the outset of a case as availability and choice of witnesses may impact on drafting the response to the Claim. In addition, you will need to identify your witnesses at the Case Management Discussion (“CMD”) and give the Tribunal details of any dates that your witnesses cannot attend. You will need to decide which witnesses are key to telling the Respondent’s story and tactical decisions will have to be taken at that early state including: which parts of the evidence to focus on, whether to pre-empt the Claimant’s arguments and attempt to counter them in advance or simply focus on drawing out the strengths in your case, and who will be a strong or conversely a weak witness where there is a choice of more than one on a particular point of evidence. In addition, the number of witnesses will largely dictate the length of the hearing which has a significant impact on the cost of pursuing and defending the litigation and therefore may well impact on the desirability of settlement for both parties.
The witness statements are presented to the Tribunal as that witness’ “evidence in chief” meaning the statement must cover all the evidence the witness wants to give. Aside from answering direct questions in cross-examination and examination in chief, the statement will constitute the only evidence which the witness is allowed to present to the Tribunal. It is therefore key that the witness statements collectively include every point of evidence that is helpful to your case, whilst being careful not to adopt a “kitchen-sink” approach which will detract from the messages delivered to the Tribunal. The Tribunal may take the statements “as read” meaning they will read the statement in advance of the hearing but more often than not Tribunals will ask that each witness reads his or her statement aloud to the Tribunal.
Each witness is required to sign their statements to confirm that it is true to the best of their knowledge and belief and the duty of each witness is to tell “the truth, the whole truth and nothing but the truth”. It is vital therefore that each witness is comfortable with the contents of their statement and that it is accurate and this will be put to the test through cross-examination by the Claimant’s representative or the Claimant itself if they are unrepresented.
The employer has the more onerous job when it comes to drafting witness statements as it will be likely to have considerably more witnesses. The Claimant will often not call any other witnesses save perhaps an expert, although they can call other witnesses including your former and current employees. It is possible for either party to apply to the Tribunal for an order requiring a particular person to attend as a witness, however usually this course of action is not recommended where a witness is not willing to attend as the witness is likely to be unpredictable and difficult to manage.
It is unlikely to be desirable to have each of your witnesses providing evidence on the entire chronology presented by the Claimant. It is often the HR Manager and the Claimant’s line manager who will have a detailed knowledge of the majority of the events and who will provide the employer’s chronology in their witness statements and therefore who tend to have longer statements, with other witnesses corroborating key aspects or providing evidence on specific points of evidence.
How to get started and tips for drafting
- Witnesses may speak with colleagues and refer to documents to refresh their memories prior to drafting their witness statement (and indeed it is certainly a good idea to do), however, the statement must identify those aspects which are not drawn from the witnesses’ own recollection.
- Each witness statement should open with a paragraph explaining very briefly what the Respondent does, what their role is, and what their working relationship or connection with the Claimant is.
- The Tribunal panel may not have any prior understanding of the business and so key aspects may also need to be explained throughout the statement where appropriate.
- The witness statement should tell the story in chronological order.
- Each individual referred to in the witness statement should be referred to by their full name and job title the first time they are referred to in the witness statement and thereafter by either their second name, e.g. Mr Tailor, or their first name, ensuring a consistent approach.
- Where possible the witness statement should refer to exact details, such as dates, times, who was present at particular key events or discussions, whether points were communicated verbally (and if so, whether by phone or in person) or via email or letter.
- The witness statement should refer to documents wherever a document provides evidence for an important point made in the statement.
- Definitions can be used throughout the document to make the statement more readable so long as the definitions are clear and consistently applied.
- Using short sentences will assist the fluidity of the statement and as the witnesses are likely to read their statements aloud it is essential that it is in their own words and in language they would use; witnesses who sound natural appear more credible.
- It is important that the statements are not considered in isolation. Prior to exchanging witness statements a careful and thorough comparison of all witness statements should be undertaken to identify inconsistencies or gaps in evidence provided. Inconsistencies, particularly those which go unexplained, are likely to be fatal to the creditability of the witness and therefore also to the employer and the defence so if they exist you need to know sooner rather than later. Never, ever be tempted to fill the gaps with what you would like the witness to say – it has to be their recollection, even if not helpful to your case.