Employment Tribunals: What should an Employer do if a Key Witness has left the Business?


So I think when a client finds themself
in a situation where they have an employment tribunal claim, but a key
witness in that claim has left the business the first question to ask
themselves is what were the terms under which that person left? If that person
was a good leaver so to speak, and they left perhaps because they found another
job, but the relationship was still intact then we’re in a much better
position to be able to: one, encourage that person to attend but also to have
some confidence that when they do attend the evidence that they give will support
the company’s case. If however we find out that unfortunately that person left
under a cloud or negative circumstances I would only recommend looking to engage
them in the hearing if their evidence is absolutely key. So at that point if we do
identify that that was the basis upon which they left, I’d encourage a
review of the case to establish: how important are they? Is there any other
way to get that evidence without drawing in somebody who potentially hasn’t got
great things to say about the organisation. The risk with having a
witness who isn’t on good terms with the company is that whilst the employer can
work with that individual to prepare a witness statement, and ask specific
questions to draw out the evidence that supports the company’s case, they can’t
then control what is said under cross-examination. So the risk is that
the employee goes off script, and/or discloses things that don’t help when
being cross-examined by the other side. If you’re there without a key witness my
advice is always to be upfront about the reasons why. Tribunals appreciate
that individuals leave organisations and not everybody’s first choice is to come
back and attend a tribunal hearing. If there is an absolute need to have that
person, there is the option to go down the route of a witness order, but that
should be done very cautiously because we always say that a reluctant
witness is a bad witness. So, witness orders are much more effective where you
have somebody who would like to be there but is having
difficulties on a practical level for example if they’re struggling to be
released from their job, a witness order will assist them and explain to their
employer why they need that time off. But bringing somebody that doesn’t want to
be there under a witness order carries a risk and it should be one that’s taken
only in exceptional circumstances where there’s an absolute need to have
somebody and they’re critical to the case. Sometimes employers will ask is
there an option to pay witnesses to attend hearings. What I would recommend
is that any payment is focused on expenses. We don’t want somebody to be
out of pocket to attend a hearing but at the same time we don’t want somebody to
be seen to be being incentivised to attend, in such a way that it could call
into question the credibility of their evidence. So, if there is any talk about
payment of any sort it should be about the losses that person is sustaining as
a result of attending.

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