In most discrimination cases the evidence in chief is given by witness statement. A witness statement is a document outlining, in their own words, evidence on what happened, the order that it happened, including concise details of events and full names of any witnesses. Ensure important evidence is not omitted from a witness statement because you think that you will ‘surprise’ the Respondent with it at the hearing. You run the risk of the Tribunal not allowing you to introduce that evidence at that late stage.
You, as the Claimant, will be a witness so you too may be required to produce a witness statement. In many cases where you are representing yourself the tribunal will not expect you to produce a witness statement and your evidence will simply be taken as oral evidence in the hearing. This will be decided by the tribunal.
What will the witnesses say?
As you would expect, you may not tell a witness what to say, nor may you coach them in how they should say it. But it is permissible to talk to them and ask them what they intend to say. Take a note of the evidence that a witness will give to the tribunal. Consider how it advances your claim and in particular decide whether it is sufficient. Witness evidence might not shed light on the issue that you thought and you may need to consider whether to call that witness or whether it would be better to call someone else.
Exchange of witness statements
Usually in discrimination cases the Tribunal directs that the parties lodge their evidence by way of witness statement. A timetable will be established for the exchange of statements. This provides both parties with the opportunity to see what the other is going to say and prepare questions for cross-examination. The tribunal will not allow you to add anything or change your evidence once the witness statements have been exchanged, unless there is a very good reason, so it's important to get your statement right.
My witnesses are complaining they are ´out of pocket´ - Can I claim?
You can claim for travel and subsistence expenses incurred by your witnesses, but the claim must be submitted within one calendar month of the conclusion of the hearing at the latest and sooner if possible. A witness expenses form should be obtained from the tribunal clerk on the day of hearing.
Up-to-date rates are available on the tribunal’s website
What can I do?
If a witness is unwilling to attend and you think that their presence is necessary you can apply to the tribunal for a Witness Order. This compels the witness to attend and if they fail to do so, they are guilty of a criminal offence and may be convicted and fined. This is also applicable if a witness is willing to attend but the Respondent will not release them without a witness order.
Application for a Witness Order
needs to indicate:
- the name and address of the witness
- why they are required as a witness
- the nature of the evidence they will give
- a statement that the witness declines to attend unless an order is made