This month’s problem concerns:

We are currently defending a tribunal claim and one of our employees is reluctant to give witness evidence, because the claimant is their friend. We are worried that they won’t attend or their evidence will damage our case. How do I handle it?

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 the significant stress. Witnesses may also be concerned about potential repercussions related to the evidence they give, whether from their employer or other employees – especially if they know them personally.

You 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 your version of events. You should carefully consider which witnesses you want to call, based on the potential value of their evidence, against the risk of their evidence either not being provided, or being actively unhelpful.

If you want this employee to give evidence, you should speak with them to understand the reasons behind their reluctance to cooperate. It may be that you can resolve their concerns 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 – not to “win” the case for you or “lose” it for their friend.

If the employee has already prepared a witness statement, you can explain that the Tribunal and the Claimant (or their legal representatives) can only ask questions arising from their signed statement and any documents they refer to.

If the employee is still reluctant, you could tell them that they are expected to attend. This would likely be a reasonable management instruction and you would pay them as normal when they are at the Tribunal. If they refuse to attend without good reason, you could consider whether there is a potential disciplinary issue. However, this will likely be very damaging to your relationship with them, and you should consider the wider implications for both this and the quality of their witness evidence.

It is important that you avoid saying or implying that there may be negative consequences if their evidence does not favour you. 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 crossexamination, and this is more likely if they feel pressured into taking a particular line. You certainly want to avoid a situation where the employee states during cross-examination that they have been told what to say – this could be disastrous for your case and the credibility of the other witnesses.

If you do not think the employee will provide helpful evidence, you should consider whether it is needed at all. For example, the evidence they can provide may be covered adequately by other witnesses. You should take advice from your legal team on this point. There is a further possibility that the employee may be called as a witness by the Claimant. This means that they would be cross-examined by “your side” during the hearing, which is often a very difficult and conflicting experience for an employee.

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 – a criminal offence.

If the employee attends the hearing and gives evidence which favours their friend’s case, this is not a fair basis for disciplinary action in itself, so long as the employee has given this evidence truthfully in line with their obligations to the Tribunal. Disciplining them is very likely to end with another tribunal claim.

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 you believe is 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 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.  

Overall, the best approach will depend mainly on the value of this employee’s evidence, and you should consider this carefully with your legal team. If they do eventually give evidence which is found to lack credibility, you can consider taking further action.