Employment Tribunal Hearing Preparation – Witness Statements

We have recently heard about an unusual situation where an employee got to the time for exchanging witness statements, as had been ordered by the Employment Tribunal. However when they contacted the Employer to confirm that they were ready to exchange and to agree to do so by email the Employer said that they did not have any witnesses and therefore no witness statements to exchange.

This was very surprising and so we asked what evidence they intended to rely on and they replied that they were going to rely on the evidence in the bundle of documents. A very surprising position for the Employer to take and unlikely to occur very often.

Whilst this was potentially advantageous it is not recommended that you take advantage of the situation and proceed to the Employment Tribunal without first giving the Employer a chance to think about what they are doing by proceeding with no witnesses.

We recommend that in these circumstances you  spell out the situation in writing to the Employer. Saying something along the lines of:

During our earlier telephone call you stated that you do not intend to rely on any witness evidence in your defence and therefore will not be providing any witness statements. I would like to remind you that it is a requirement that we exchange statements for any witnesses before the hearing and that if you do not do so you will be unable to rely on the witnesses evidence at the hearing. If you decide to introduce witness evidence after we have exchanged or at the hearing I will object to it’s introduction and therefore you may be prevented from relying on the evidence.

I am ready to provide you with my witness statements but before I do so I wish to make sure that you are aware of the situation and still do not want to provide any statements. Please kindly confirm your position in writing and once I have received this I will send my Statements.

You may think that it is a little unfair that you have to give them notice of this and really you might want to say well hard luck to you. However, the Tribunal often give flexibility to Employers and Employees who are unrepresented and the last thing you want is to get to the Hearing and find that the Tribunal postpone the hearing to allow the Employer to produce Statements and then you have to amend yours in response.

By writing to the Employer and pointing this out to them now you have the opportunity to avoid delay by saying to the Tribunal at the Hearing, ‘hold on a minute I told them that this would be a possible issue, and I gave them the chance to produce Statements, they did not do so and should not be allowed to do so now, to your detriment.’

This will hold much more weight with the Tribunal if you can produce written evidence of your reasonableness.

In any event it is a rather bizarre and unusual situation where the Employer does not want to give any evidence, and would be really interesting to see how they are going to get on at the Tribunal!

When exchanging statements it is advisable to ensure that you do so simultaneously so that there can be no opportunity for the Employer to look at your Statements and amend theirs before sending. Also if you are going to exchange by email or fax it’s a good idea to check that they agree and are going to do the same.



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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

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