Witness Statements for Employment Tribunals in England and Wales: What are the ‘Issues’?

AuthorPenny Cooper,Michelle Mattison
Published date01 October 2021
Date01 October 2021
Subject MatterArticles
Witness Statements for
Employment Tribunals in England
and Wales: What are the Issues?
Michelle Mattison
Centre for Forensic and Family Psychology, School of Medicine, University of Nottingham
Penny Cooper
Institute for Crime and Justice Policy Research, Birkbeck, University of London
In England and Wales, Employment Tribunals (ETs) hear claims from persons who believe that an
employer, or potential employer, has treated them unlawfully. Witness statements form part of
the evidence considered by ETs, but research is lacking with regard to the methods used to pro-
duce ETwitness statements. This study presents the ndings from 40 semi-structured interviews
with ET judges, panel members, employment lawyers (solicitors, barristers, advisers) and liti-
gants. Our data revealed six themes: professional processes, enabling through case management,
presentation preferences, challenges for litigants in person, availability and quality of resources,
and lack of training. Participants felt that the quality of witness statements varied amongst those
prepared by professional advisors and by litigants in person. Our interviews revealed almost no
evidence of practitioner training on how best to prepare a witness statement. We make recom-
mendations about guidance and training for those tasked with drafting witness statements.
drafting, employment tribunal, witness evidence, witness statement
Employment Tribunals (ETs) in England and Wales are responsible for hearing claims from persons who
believe that an employer, or potential employer, has treated them unlawfully. Issues may concern unfair
dismissal, discrimination and matters concerning pay (HM Courts and Tribunals Service, 2020). If a
claim is issued in the ET, the tribunal will decide when the case will be heard and determine (or
direct) what the parties must do to prepare for that hearing. The ETs directions will usually include
instructions to the parties about preparing witness statements. Witness statements are likely to come
from the person making theclaim (the cla imant) and theirsupporting witnesses as well as from witnesses
Corresponding author:
Mattinson, Centre for Forensic and Family Psychology, School of Medicine, University of Nottingham, UK.
Email: michelle.mattison@nottingham.ac.uk
Original Research Article
The International Journal of
Evidence & Proof
2021, Vol. 25(4) 286306
© The Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/13657127211046397
for the employers (therespondent). It is not unusual for a party, particularly a claimant, torepresent them-
self, which renderspotential for inequality of arms if a claimant is unrepresentedand a respondent has sub-
stantial resources in terms of in-house expertise (e.g. human resources) and/or external legal advice.
Witness statements can inuence the ways in which disputed issues are interpreted, thus they can have a
bearing on litigation costs, efciency of the courts and tribunals, and overall decision-making outcomes
(Pender and Heatley, 2018). The ability to produce witness statements in compliance with the legal rules
and directions, is fundamental to any party seeking access to justice in the civil courts and tribunals. There
is a consensus that legal professionals strive to obtain statements which are considered to be both complete
and accurate (Brackmann et al., 2017). Achieving good-quality witness statements has, for a number of
decades, been a particular focus within the area of criminal law. Here, a plethora of theoretically based
best practice, informed by scientic evidence, has guided the gathering of witness evidenceand the production
of witness statements. Empirical research has not, however, investigated and scrutinised the methods adopted
by practitioners to gather information for witness statements in civil cases, and in particular, in ETs.
Factors that can affect witness statements
Much of the witness research is in the eld of psychology and has focused upon internal and external
factors that inuence witness accounts. Internal factors include a witnesss memory for an event, their
ability to recall and narrate these memories, and the impact of individual characteristics such as age as
well as developmental levelalso referred collectively as estimator variables(Wells, 1978). There is
a consensus that memory, in particular, witness memory, can be fallible, thus causing signicant conse-
quences in the legal system as a whole (Wixted et al., 2018). Multiple internal factors inuence witnesses
recollection of past events. One of the most prominent internal factors that can affect witness recall is
memory fade or decay. In most cases, this is caused by the passage of time (Cowan and AuBuchon,
2008). Separately, interference can occura process whereby memories are present, but inaccessible
via one or multiple traces (Hardt et al., 2013).
Overall, it is very well established that witnessesrecall of past events is not literal and not an entirely
objective account of their experiences because memory is reconstructive in nature and inuenced by
ones own prior knowledge (Hemmer and Steyvers, 2009). When recollection does occur, events are con-
structed using whatever retrievable information was encoded at the time of the event, as well as an indi-
viduals prior knowledge, which can serve the function of subconsciously lling in gaps(errors of
commission; Tuckey and Brewer, 2003). These theoretical principles are well established but are not
always widely known by legal professionals. For instance, previous research has found that student popu-
lations are just as aware of memory phenomena as legal professionals are (Benton et al., 2006).
Interestingly, reference to any of these principles is overwhelmingly omitted from all of the guidance cur-
rently available about the production of witness statements in ETs.
Witness accounts are long known to be heavily inuenced by external factors (including system vari-
ables, in the case of the justice system; Wells, 1978). A plethora of empirical research has focused upon
the external factors that inuence the accuracy and completeness of eyewitness memory and reports of
such memories. Most remarkable, was the discovery by Elizabeth Loftus in the 1970s that memory is
malleablehighly vulnerable to misinformation effects(Loftus and Palmer, 1974; Loftus et al.,
1978). Misinformation effects are dened as impairments in recall of events that occur after a witness
is exposed to misleading or false information (Loftus, 2005). The phenomenon of misinformation
effects has been investigated for over 40 years, and has been found to be more prevalent after the
passage of time, where memory fade has occurred and the event memory is weakenedthereby reducing
a witnesss ability to identify misinformation and resist its effects (Loftus, 2005). The source of misin-
formation, primarily, has received a great deal of attention from the scientic community.
Misleading information can emanate from many sources. Discussions with a co-witness result in
greater misinformation effects, especially if the witness is previously acquainted with the co-witness as
Mattison and Cooper 287

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