What to do with witness statements?
Employment Tribunals have a wide discretion about how to conduct hearings to ensure that those hearings are dealt with efficiently and speedily. Useful guidance has recently been given by the EAT in the case Mehta v Child Support Agency (CSA) as to when witness statements should be read out at hearings and the matters that the Employment Tribunal should take into account when making their decision.
Ms Mehta brought unfair dismissal proceedings against the CSA and the case was listed for two days. The CSA intended to call three witnesses, Ms Mehta who was unrepresented, was the sole witness for her case.
All of the first day of the hearing was taken up with two of the CSA witnesses giving their evidence by reading out their witness statements. They were subsequently asked some questions by their barrister by way of clarification, cross-examined by Ms Mehta and asked some additional questions by the Employment Judge. Because of the time taken to hear the evidence of those two witnesses, the Employment Judge asked both parties if they were agreeable to the Employment Tribunal reading the remaining two witness statements overnight because of concerns about time. This would mean that those witness statements were then taken ‘as read’ and would not be read out by the respective witnesses the following day. Neither party objected to that approach. However, the following day, Ms Mehta was surprised not to be allowed to read out her witness statement. Her claim for unfair dismissal was unsuccessful and she appealed to the EAT on the basis that she was not allowed ‘to go through my written statement’ and it was unfair that two out of the three CSA’s witnesses did have the opportunity to read out their statements. There was no appeal about the decision in relation to the dismissal itself.
At the EAT, Ms Mehta, represented by her barrister, argued that it was important both as a matter of substance and as a matter of perception of fairness that Ms Mehta’s witness statement should have been read out in the course of the hearing. This would have given the Employment Tribunal the opportunity if necessary to ask for any explanation or amplification of any points in that statement where the information was unclear. In addition, the Employment Judge, as Chairman of the Employment Tribunal had a special responsibility in dealing with Ms Mehta as a litigant in person. There was an obligation to ensure that the proposals put to her were properly understood and that Ms Mehta understood too that she had a genuine choice and could have objected to her witness statement being taken ‘as read’.
The appeal was dismissed. The EAT stated that litigants in person "after all proper allowances have been made for their position, have to be treated as responsible for what they say and do in the course of proceedings". The EAT found that Ms Mehta had agreed to the course proposed, namely the reading by the Employment Tribunal of the remaining two witness statements. The fact that there was no need for them to be read out by the two witnesses the following day did not prevent Ms Mehta from presenting her case very fully in other ways, specifically, through cross-examination of the CSA’s witnesses, through her own answers in cross-examination and in response to the Employment Tribunal’s questions and in her closing submissions.
The EAT then gave general guidance on the approach to be taken regarding witness statements:
- It was not a requirement of fairness in every case that the statements of every witness had to be read aloud in full or indeed at all. In many cases the process of reading aloud a witness statement which the Employment Tribunal can efficiently read out of court achieves ‘nothing of value’ and is contrary to the overriding objective in as much as it wastes the time of the Employment Tribunal and parties, particularly when the witness statements have been lawyer drafted and cover masses of detailed material.
- In some circumstances, there may be a good reason for a witness statement particularly of a claimant and especially an unrepresented claimant, to be read aloud in whole or in part to enable the claimant to feel that they have had their say. Another reason might be where the statement is confused or inadequate and in those circumstances, the witness can then be taken through the statement to clarify any uncertain points. This approach may also be valuable if the material is very technical.
- A flexible approach should be adopted. As the EAT commented, "it need not be all or nothing." It may make sense for only part of the statement to be read aloud or for a witness to be walked through their statement by their representative. Alternatively, the Employment Judge could simply offer a short summary of the witness statement to reassure the individual that their case has been understood.
- It is a matter for each Employment Tribunal when exercising its case management powers to decide what is the appropriate course of action to take in any particular case. Where there are regions where the practice of routinely reading aloud all witness statements was the standard approach then this should be reconsidered.
Interestingly, in the final part of the judgment, the EAT mentioned the requirement that generally, Employment Tribunal hearings should be heard in public (with some limited exceptions). Neither party in the Mehta case made submissions on whether it followed that where witness statements were taken ‘as read’ copies of those statements should be made available to members of the public attending the hearing. Be prepared for this development in future cases.
EPB Newsletter - Winter 2010/11