Employment disputes often create practical challenges for employers where internal relationships collide with the demands of litigation. Particular difficulty arises when an employer must rely on employee witness evidence in tribunal proceedings, but the employee is personally conflicted about giving it. This article considers how employers can balance the need to protect their legal position while maintaining trust and fairness in the employment relationship.
There are many reasons why an employee may be reluctant or refuse to attend a tribunal as a witness to give evidence. The formality of the tribunal setting can feel intimidating, and the prospect of entering the witness box can cause significant stress. Witnesses may also be concerned about potential repercussions related to the evidence they give, whether from their employer or other employees.
The employer will usually call witnesses who were involved in the issues which are part of the case. Usually this will include managers involved in any formal hearings or who made relevant decisions, or employees who can support the employer’s version of events. Careful consideration should be given when selecting witnesses, to include the potential value of their evidence, against the risk of their evidence either not being provided or being actively unhelpful.
The employer should speak with the employee to understand the reasons behind their reluctance to cooperate. It may be that their concerns can be resolved by reassuring them that they will receive support and guidance from the company and its legal advisors, and that their role as a witness is just to provide the best possible evidence and not to win the case.
If the employee has already prepared a witness statement, it may be helpful explain to them that the tribunal and the claimant (or their legal representatives) can only ask questions arising from their signed statement and any documents referred to within their statement.
If the employee is still reluctant, the next step is to tell them that they are expected to attend. This would be a reasonable management instruction, and they would be paid as normal when they are at the tribunal. If they refuse to attend without good reason, this could be considered a potential disciplinary issue. However, this approach is likely be very damaging to the employment relationship and could adversely affect both the quality and reliability of their evidence.
It is important to avoid saying or implying that there may be negative consequences if their evidence does not favour the company. Witnesses give their evidence under oath, meaning they must tell the truth within the best of their knowledge and belief.
It is also important to recognise the practical risks of placing undue pressure on a reluctant witness. Even the most cooperative witness can give unexpected evidence or encounter difficulty in cross‑examination, and this is more likely if they feel pressured into taking a particular line. A situation where the employee states during cross-examination that they have been told what to say must be avoided as this could be disastrous for the employer’s case and the credibility of the other witnesses.
Where an employer considers that an employee is unlikely to provide helpful evidence, it may be necessary to assess whether their evidence is required at all, particularly where the relevant points can be covered adequately by other witnesses. Employers should take advice from their legal team when making this assessment. There is also the possibility that the employee may be called as a witness by the claimant, in which case the employee would be cross‑examined by the employer’s representatives at the hearing, a process which can be particularly difficult and conflicting for the individual concerned.
The tribunal does have the power to issue “witness orders” to compel witnesses to attend, but these are usually only necessary with former employees or other third parties. The tribunal expects parties to take reasonable steps to secure a witness’s voluntary attendance before resorting to a witness order. Failure to attend after receiving a witness order will put the employee in contempt of court, which is a criminal offence.
When judging the case, the tribunal will make findings about the credibility of each witness, based on their witness statement and performance during cross-examination. For example, if a witness appears overly evasive, gives evidence which does not match the documentation or has a “selective memory” on certain points, the tribunal may decide that they lack credibility.
If the employee gives evidence which is believed to be untrue, and which the tribunal has decided lacked credibility, there may be grounds for disciplinary action. This issue was considered by the EAT in Radia -v- Jefferies International Ltd.
In this case, the Claimant (the managing director of a FCA regulated business) brought a disability discrimination claim against their employer. The Employment Tribunal found that their evidence had been evasive and not credible. They were subsequently suspended and then dismissed following a disciplinary hearing, on the basis that their behaviour had demonstrated dishonesty, which rendered him unsuitable to continue in a regulated role. The Employment Tribunal found that it was reasonable for the employer to have relied on the previous tribunal’s findings on the claimant’s credibility, and the EAT agreed.
These decisions were made in the context of a regulated business, with higher than standard requirements around honesty and propriety, and any potential disciplinary action would depend on the exact circumstances in this case.
The appropriate approach will depend on the value of the employee’s evidence and the risks of calling them as a witness, both of which require careful assessment. Employers should start with open discussion and support, assess how critical the evidence is, avoid undue pressure, and seek legal advice where needed. The focus should remain on obtaining honest, credible evidence without creating additional organisational or reputation risk to the business.
For legal guidance and advice regarding Employment Law queries, please contact Emma Doherty or a member of our Employment Team for more information.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.
