Witness statements in the employment tribunal in Scotland

This advice applies in Scotland only

A witness is anyone who gives evidence in a tribunal case by telling the tribunal about what happened.

The claimant is a witness in their own case. There may be other witnesses to give evidence but it’s common for a claimant not to have any extra witnesses. Witnesses that might be helpful could be:

• A colleague who can explain what happened at the time of the discrimination eg because they saw the harassment
• A colleague who can give evidence that something similar happened to them
• A family member or friend who can explain the impact the discrimination has had on the claimant, to help the tribunal assess the injury to feelings award
• If it’s a disability discrimination case, someone who can explain the impact of the disability — perhaps a family member or support worker

Witnesses normally have to attend the hearing. If you’re representing the client you will need to ask the witnesses open questions to help them give their evidence. A party who doesn’t have a representative will be asked questions by the tribunal.

Getting a written account from witnesses

Generally speaking, it is not common practice for parties in Scotland to exchange written witness statements prior to a tribunal hearing.

Very occasionally you might be ordered by the tribunal to prepare written statements for your witnesses. This is likely be the result of an application being made by either party for an order from the tribunal requesting that witness statements are exchanged between the parties. In the event that statements are required, you would provide these to the employer’s representative, who will, in return, give you statements from their witnesses. The tribunal’s order will usually specify that copies of the witness statements are to be provided to the tribunal as well.

Normally you won’t need to write statements but it can be helpful to write a statement for your own use if you’re going to be representing your client at the hearing. Lawyers call these statements ‘precognitions’.

They can be helpful because it means you know what the witness needs to tell the tribunal. This will help you prepare your questions for the witness to enable them them give their ‘evidence in chief’ at the hearing. It also allows you to cross reference the documents that the witness needs to mention — if a document isn’t referred to by a witness the tribunal won’t read it.

Writing a statement or precognition

Before writing, make sure you understand and focus on:

• what incidents you say were discrimination — there may be more than one
• what type of discrimination each was (direct, indirect, etc)
• what needs to be proved for each type of discrimination
• which facts the employer admits and which they dispute

Format of statements

If you’re preparing a witness statement to exchange with the other side and for the tribunal, it should:

• Be typed
• Have numbered paragraphs
• Have wide line spacing — at least x 1.5, preferably x 2
• Have the case heading and case reference number on the front page
• State the witness’s name and address
• Contain a closing “statement of truth” (“I believe that the facts in this statement are true”)
• Be signed and dated by the witness

There is no special format for a statement you just intend to be for use by you and your client or witnesses.

In both cases you need to make sure you are writing down your client’s version of events. It is important that you do not influence what they say or make it look better on paper — it should be their story, exactly as they would tell it.

Structure for the claimant’s statement

This is a suggested outline for a written witness statement that’s going to be exchanged with the other side and provided to the tribunal.

Section 1: About the claimant

• dates of employment
• job title
• broadly, what the claim is about
• any protected characteristic relied on eg ‘I was diagnosed with Multiple Sclerosis in 2012’. This will need to be more detailed if the employer disputes the the claimant has this protected characteristic. In disability discrimination cases it will need to be much more detailed.

Section 2: About work

• the nature of employer’s business, how big is it?
• your job duties, how they fit in the structure of the organisation (which team, line manager, do they line manage anyone?)
• any relevant employment history (eg any disciplinary record)
• If the employer says the claimant isn’t covered by the Equality Act because they’re not an employee or providing personal service you need to explain more about the work that they did, whether they ever sent (or could have sent) someone else to do the job, etc.

Section 3: What happened

This is usually best done in date order. However if there are other claims as well as discrimination you could deal with those separately — for example explain why wages are owed after explaining about the harassment.

Section 4: any further details relevant to the specific discrimination not covered in section 3

If there’s anything that needs to be covered but which doesn’t fit neatly into a chronological account, you can cover it separately. For example:

Direct discrimination claim

How the treatment received was less favourable than other people. Which people? Is there an actual comparator? Or anyone in similar circumstances? What happened to them? How do you know what happened to them?

Indirect discrimination claim

What evidence is there that people with the same protected characteristics are affected by the provision, criterion or practice? What does the claimant say about the employer’s justification argument?

Failure to make reasonable adjustments claim

If the claimant asked their employer to make a specific adjustment what was it and how would it have helped? Have you thought of any adjustments the employer could have made that weren’t mentioned at the time? How would those adjustments have helped?

Section 5: injury to feelings

The personal / emotional effect that the discrimination has had on the claimant. Have they had any medical treatment because of the discrimination?

Section 6: Financial loss and/or recommendations sought

Explain the financial impact of the discrimination, eg loss of earnings and other employment benefits.

If the claimant lost their job because of the discrimination:

• what have they done to find a new job?
• If they haven’t been able to find a job that pays the same as the old one yet, how long do they think it will take? Why? Remember that if they are saying they’ll be out of work for several more months they have to be able to justify that.

If the claimant had income from other sources as a result of the discrimination — eg if they claimed welfare benefits or got a temporary job, explain what it was, how much they got and when.

Example of a witness statement about disability

This is an example of a statement (sometimes called a ‘disability impact statement’) which would be used at a hearing to decide whether a claimant is disabled. It’s laid out as a formal witness statement so you can see how a statement prepared for exchange would look.

I, Annie Graves of 21 Short Street, Edinburgh, say as follows:

1. I first began to experience pain and numbness in my hands in the summer 2 years ago. I was working a lot in the garden at the time and I had a burning and numb feeling in my fingers and wrist which I put down to the gardening.

2. It did not go away and I went to see my GP. He referred me to a specialist at St Dunstan’s hospital. I had x rays, scans and blood tests taken and was diagnosed with rheumatoid arthritis.

3. I was initially given steroid treatment to help get the condition under control but I no longer take that. I take Naproxen (an anti-inflammatory) first thing in the morning which helps ease the pain I have most mornings when I wake up. I take another dose later in the day if I need to but I try to avoid it so only take an extra dose a couple of times a month.

4. I take paracetamol as a precaution if I’m going to do something I know will make the condition flare up, such as wrapping Christmas presents or doing light gardening.

5. At the end of the day, when the tablets have worn off, my hands feel uncomfortable but I put up with it because I don’t want to take too many tablets. I sometimes have to take paracetamol again if the pain is stopping me sleeping (about once a month).

6. The pain and stiffness in my hand and fingers is worse in the mornings. I find it takes longer to get dressed and undressed than it used to because I have difficulty with zips and buttons, and even just holding onto clothes to put them on.

7. The condition has stopped me doing some of the things I used to do. I used to like sewing and knitting but find it too difficult without full mobility in my hands, and because I found it aggravated the pain.

8. I can cook okay but find it difficult to peel vegetables . I avoid lifting large, full saucepans because it causes pain in my wrist and I’m afraid of dropping them. I struggle to open jars, because I don’t have a full strength grip and the twisting motion causes me pain.

I believe that the facts stated in this witness statement are true.

Signed………………. Date……………………

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