Witness statements in the employment tribunal in England and Wales
This advice applies to England and Wales 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. You may have other witnesses to give evidence but it’s common not to have any extra witnesses, so don’t worry if you don’t. Witnesses that might be helpful could be:
- A colleague who can explain what happened at the time of the discrimination eg because they saw you being harassed
- 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 you, to help the tribunal assess your injury to feelings award
- If you’re claiming disability discrimination, someone who can explain the impact of your disability — perhaps a family member or support worker
The parties — the claimant and the respondent — will be asked to provide a written witness statement for every person who will give evidence to the tribunal, including the claimant.
Anyone who gives a written statement also needs to go to the hearing, so you should make sure your witness is happy to do this. If you want someone to be a witness but they’re not willing to go to the hearing you can ask the tribunal to order them to go. However this is usually not a good idea because you can’t be sure that what they say will be helpful for you.
Writing your witness statement can take a long time so make sure you start it early. At the tribunal hearing your witness statement will have been read by the panel before the hearing and you will not be allowed to expand on it greatly on the day, so it’s important to include everything you need to say.
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 respondent admits and which they dispute
Format of statements
A statement 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” (“the contents of this statement are true to the best of my knowledge and belief”)
- Be signed and dated by the witness
Structure for the claimant’s statement
This is a suggested outline for a 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 your 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 respondent disputes that you have this protected characteristic. In disability cases it will need to be much more detailed.
Section 2: About your 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 you line manage anyone?)
- any relevant employment history (eg any disciplinary record)
- If the employer says the respondent is not 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 your job etc.
Section 3: What happened
This is usually best done in date order. However if you have other claims as well as discrimination you could deal with those separately — for example explain why you are owed wages after explaining how you were harassed.
Section 4: any further details relevant to the specific discrimination not covered in section 3
If there’s anything that need 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 you 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 your protected characteristics are adversely affected by the provision, criterion or practice? What comments do you have about the employer’s justification argument?
Failure to make reasonable adjustments claim
If you asked the employer to make a specific adjustment what was it and how would it have helped you? Have you thought of any adjustments the employer could have made that you didn’t mention at the time? How would those adjustments have helped? Why do you think it would have been reasonable for the employer to make the adjustments?
Section 5: injury to feelings
The personal / emotional effect that the discrimination has had on you. Have you had any medical treatment because of the discrimination?
Section 6: Financial loss and/or recommendations sought
Explain the financial impact of the discrimination, eg your loss of earnings and other employment benefits.
If you lost your job because of the discrimination:
- what have you done to find a new job?
- If you haven’t been able to find a job that pays the same as your old one yet, how long do you think it will take you? Why? Remember that if you are saying you will be out of work for several more months you have to be able to justify that.
If you’ve had income from other sources as a result of the discrimination — eg if you claimed welfare benefits or you got a temporary job, explain what it was, how much you got and when.
Top tips for writing a witness statement
Give enough detail
Agreed facts (things your employer admits happened) can be dealt with briefly (eg dates of meetings)
Disputed facts: should be covered in much more detail. Don’t make general statements like ‘I was harassed on a daily basis’ or ‘my boss always ignored me’. Give specific examples.
If conduct is open to criticism, admit it — Don’t be tempted to cover it up if the claimant’s behaviour is less than perfect. You (and the tribunal) need to know the whole story.
Explain any inconsistency with other accounts
The tribunal is going to have to decide who they believe on some points. One way that they decide who is telling the truth is whether what the same version of events has been given at different times. If the accounts are different (eg in a grievance letter), you should try to explain why.
Refer to the documents in the bundle
Where there is a relevant document, the statement should refer to it, and give the page number for it in the bundle.