Employment Tribunal Witness Statements: What Employers Need to Know

Employment tribunal witness statements set out the evidence that each witness will give at the final hearing. They often form a central part of an employer’s defence.

A strong statement should explain what the witness personally saw, heard, did or decided. It should also connect that evidence clearly to the issues the tribunal must determine.

Employers should begin preparing statements early. Rushed, inconsistent or exaggerated evidence can weaken an otherwise defensible case.

What are employment tribunal witness statements?

An employment tribunal witness statement is a written account of the evidence a witness intends to give.

Where the tribunal orders witness statements, the statement will normally stand as the witness’s main evidence. Therefore, the witness will not usually read the whole document aloud at the hearing.

Instead, the witness will confirm the statement and then answer questions. The claimant or their representative may cross-examine the witness, and the tribunal may also ask questions.

A separate statement should normally be prepared for every person who will give evidence. This may include directors, managers, HR personnel and other employees involved in the relevant events.

Who should provide a witness statement?

Employers should choose witnesses because they have relevant first-hand evidence, not because of their seniority within the business.

For example, the manager who conducted a disciplinary investigation may need to explain how they gathered evidence. The manager who made the dismissal decision may need to explain why they reached that outcome.

In some cases, several people will have different roles in the process. One witness should not attempt to give detailed evidence about decisions made by somebody else.

Employers should consider whether each proposed witness can add useful evidence. Calling too many witnesses may lengthen the hearing and create unnecessary duplication.

What should employment tribunal witness statements contain?

Employment tribunal witness statements should address the factual and legal issues identified by the tribunal. They should not become general accounts of the employment relationship.

A well-structured statement will normally include:

• the witness’s name, position and connection with the case;
• a chronological account of the relevant events;
• an explanation of the witness’s actions and decisions;
• references to important documents in the hearing bundle;
• details of meetings and conversations the witness attended; and
• a signed statement confirming that the contents are true.

Each paragraph should normally contain one point and carry a paragraph number. Clear numbering allows the tribunal and the parties to locate evidence quickly during the hearing.

Our article on employment tribunal evidence for employers explains how documents and witness evidence work together.

Use the witness’s own evidence

A statement should reflect the witness’s genuine recollection and understanding. It should not read as though a lawyer or HR adviser has supplied every word.

Someone may help the witness organise and present the evidence. However, the witness must remain satisfied that the statement accurately records what they can personally say.

Employers should avoid asking one witness to describe another manager’s reasoning. Where the decision-maker is available, that person will usually provide stronger evidence about why they acted as they did.

If a witness cannot remember a detail, the statement should not invent one. It can explain that the witness does not recall the precise words but remembers the substance of the conversation.

Referencing documents correctly

A witness statement should identify the documents that support the witness’s evidence. These may include emails, meeting notes, letters, policies or investigation records.

The witness should explain the significance of the document rather than simply repeating its contents. For example, a manager might explain why an email influenced their decision or how a meeting note records the employee’s response.

Once the parties have agreed the hearing bundle, references should use the final page numbers. This helps the tribunal move between the statement and supporting documents efficiently.

Employers should not refer selectively to documents that help their case while ignoring material that appears less favourable. The claimant may highlight any omission during cross-examination.

Keeping statements relevant and consistent

Longer does not necessarily mean stronger. A statement should cover all material issues while avoiding unnecessary background, repetition and legal argument.

Witnesses give factual evidence. Although they may explain their reasoning, they should not normally use the statement to make lengthy submissions about employment law.

The employer should also compare each statement with the ET3 response, disclosed documents and other witness evidence. Genuine differences in recollection may occur, but unexplained contradictions can damage credibility.

Our article on employment tribunal representation advice for employers considers the wider preparation needed before a hearing.

Exchanging employment tribunal witness statements

The tribunal will usually set a deadline for exchanging witness statements. Both parties commonly exchange them at the same time.

Employers must follow the precise wording of the tribunal order. Missing the deadline may require an application for permission to rely on a late statement.

Before exchange, employers should check:

• that every intended witness has completed a statement;
• that names, dates and document references are accurate;
• that the statements cover the issues in the claim;
• that confidential or irrelevant information has not been included;
• that the required declaration appears at the end; and
• that the witness has approved the final version.

After exchange, the employer should review the claimant’s statement carefully. It may identify new factual allegations, disputed conversations or documents that require further consideration.

Preparing witnesses for the hearing

Employers can explain the hearing process and help witnesses understand what to expect. However, they should not coach witnesses to give a particular answer.

Each witness should reread their statement and the main documents before the hearing. They should understand that they must answer questions truthfully, even where an answer does not assist the employer’s case.

Witnesses should listen carefully, answer the question asked and avoid arguing with the claimant or representative. Where they do not know or cannot remember something, they should say so.

A witness may face questions about inconsistencies, missing records or decisions that appear unreasonable. Proper preparation can help them give calm and clear answers without changing their evidence.

What if a witness will not attend?

A written statement may carry little weight if the witness does not attend the hearing and cannot face cross-examination.

Therefore, employers should confirm availability before relying heavily on a particular witness. This is especially important where a former employee or independent third party holds key evidence.

If a relevant witness refuses to attend voluntarily, the employer may apply to the tribunal for a witness order. The application should explain what evidence the person can give and why an order is necessary.

Common witness statement mistakes

Employers can weaken their defence when statements:

• contain legal argument instead of factual evidence;
• use identical language for several witnesses;
• include events outside the witness’s own knowledge;
• fail to address an important allegation;
• contradict the ET3 response or contemporaneous documents;
• exaggerate the strength of the evidence; or
• are prepared immediately before the exchange deadline.

Tribunals assess the credibility of witnesses as well as the documents. A balanced statement that acknowledges difficult facts can be more persuasive than one that attempts to present every event as favourable.

Help with employment tribunal witness statements

Employment tribunal witness statements should present the employer’s evidence clearly, accurately and in a logical order. They should help the tribunal understand what happened and why key decisions were made.

EBS Law assists employers with identifying witnesses, preparing statements, reviewing evidence and presenting a consistent tribunal defence. More information is available on our employment tribunal representation for employers page.