Employment tribunal - witness quandary

BarbicanBoy

I began an employment tribunal case for unfair dismissal against my former employer in October 2023. Witness statements were exchanged on 20 March 2024 and the evidence bundle agreed a few weeks previously. The hearing will be on 15/16 June.However, I now find that a former colleague who provided a written and signed statement of evidence which is quite important to my case has declined to appear in person at the tribunal hearing. I am loathe to require him to give evidence as I fear he may well be hostile if forced to attend. So, I  wonder if I should withdraw his statement from my bundle. Alternatively, I wonder if I can just leave it there for the tribunal to consider. Not sure what to do.

Any advice welcome. Thank you.

tacpot12

If his statement helps your case, leave it in, but I would not force him to attend. I doubt the tribunal decision will be affected by his non-attendance. 

Marcon

BarbicanBoy said:

I began an employment tribunal case for unfair dismissal against my former employer in October 2023. Witness statements were exchanged on 20 March 2024 and the evidence bundle agreed a few weeks previously. The hearing will be on 15/16 June.However, I now find that a former colleague who provided a written and signed statement of evidence which is quite important to my case has declined to appear in person at the tribunal hearing. I am loathe to require him to give evidence as I fear he may well be hostile if forced to attend. So, I  wonder if I should withdraw his statement from my bundle. Alternatively, I wonder if I can just leave it there for the tribunal to consider. Not sure what to do.

Any advice welcome. Thank you.

You can't require him to do so - you would need to persuade the tribunal that it was essential for him to attend and give his evidence in person. You've already spotted why that is often not a good idea!

This may be new territory for you, but tribunals will be very familiar with just this scenario. You've said his statement is important to your case, so leave it in.

LinLui

There is little point in withdrawing it,  but the tribunal will not consider it without the witness appearing except in very exceptional circumstances. You would have to justify why those exceptional circumstances apply - if they are simply reluctant to give evidence the tribunal is not allowed to consider it. You should,  however,  advise the tribunal that the witness will not appear. They may then decide to remove it anyway in order to prevent what is said in it influencing the decision,  something which could give rise to grounds for appeal. With a few exceptions, the judge (s) should only consider evidence which a witness has given in court and which is subject to cross-examination.

mybestattempt

You should leave the witness statement in.

The judge will decide how much weight to give the statement. 

When considering this, the judge will take into account the fact other side did not have the opportunity to cross examine the witness and if there is any documentary evidence which supports the statement.