When employment disputes graduate to the Employment Tribunal, the Tribunal has to decide what they think the facts of the matter are and how the law applies to the relevant facts. The issue of evidence in the Employment Tribunal is therefore a very important one – cases succeed or fail based upon what evidence they manage to present to the Tribunal (and how this evidence is accepted). There are two main forms of evidence in the Employment Tribunal (and any other court, really) – documentary evidence and witness evidence. Documentary evidence is (rather glibly) any evidence that has been recorded in any form (emails, transcripts of meetings, databases, audio recordings etc.) and witness evidence is (rather obviously) the evidence that witnesses to the relevant events will give. Witnesses can be extremely important – they give the Employment Tribunal a first-hand idea of what went on and how they perceived the situation. So, what happens if a potential witness in a case either refuses to give evidence? We’ll take a look at this question below by examining the following issues:
- What is a witness order?
- How can a witness order be obtained from the Employment Tribunal?
- Can a witness refuse to give a statement?
- Can a witness refuse to attend the Employment Tribunal?
What is a witness order?
A witness order is really what it says on the tin – an order to compel a witness to give relevant evidence at an Employment Tribunal hearing. A witness order can be made by the Tribunal exercising its own discretion or through an application by one of the parties to the Employment Tribunal.
How can a witness order be obtained from the Employment Tribunal?
As above, a witness order may be made by one of two means:
- Where the Employment Tribunal exercises its own discretion
- Where an application is made by one or either party
If a party is making an application for a witness order then they must fulfil certain requirements (such as making the application well in advance of the hearing and including reasons for the making of the application). Note: if an application is made for a witness order then it is not necessary to notify the other party.
Can a witness refuse to give a statement?
It is not absolutely necessary for a witness in the Employment Tribunal to provide a written statement to the Tribunal – this is preferable, obviously, but not essential. A witness who is the subject of a witness order may therefore legitimately refuse to give a written statement of their evidence. This makes cross-examination at the Employment Tribunal more tricky but it can also be an advantage (as the other side doesn’t exactly know what the witness is going to say either).
Can a witness refuse to attend the Employment Tribunal?
The short answer to this question is: no. If a person is the subject of a witness order then they must attend the Employment Tribunal to be examined on their relevant evidence. If they fail to do so then this is a criminal offence, punishable by (currently) a fine not exceeding £1,000.