In my last blog I wrote about the credibility and reliability of witnesses. But how does the Tribunal get to the truth when faced with conflicting evidence and/or (in)credible witnesses?
In order to answer this question it is important to look at the process of proof and the role of the parties and the Judge.
If the dispute is not settled during ACAS Early Conciliation, the Claimant’s solicitor will set out the basis of the Claimant’s case in an ET1 claim form. This will give the Respondent fair notice of what the Claimant intends to prove (and in the majority of cases the onus of proof is on the Claimant). The Respondent will then answer the allegations in an ET3 response form.
At Tribunal, the Claimant will often begin by calling their first witness. The witness will “swear” or “affirm” to tell the truth. This is the first part of the process in getting to the truth, assuming the witness does not lie (i.e. commit perjury).
Tribunals in England and Wales follow differing procedures for hearing witness evidence. In England and Wales, the parties exchange witness statements in advance of the hearing. The Tribunal will read the witness statement in advance. The Claimant's solicitor will sometimes be permitted to ask clarifying questions to elicit further evidence, known as examination in chief. Both parties' witnesses may sit in the Tribunal to hear the evidence being given.
In Scotland, parties do not tend to exchange witness statements in advance of the hearing and so evidence is given by way of the witness answering his solicitor's questions (examination in chief). During examination in chief the Claimant’s solicitor is prevented from asking any leading questions and can only use open questions: for example, the Claimant could be asked what happened on a particular day. In Scotland, witnesses may only sit in the Tribunal after they have given their evidence.
In both England and Wales, and Scotland, once examination in chief is complete, the Respondent's representative has the opportunity to cross-examine the witness. In contrast, leading questions are permitted in cross-examination and many solicitors will make deliberate use of leading questions in order to shape the evidence of the witness. For example, the Respondent's solicitor could ask questions such as "You did not report the mistake to Brian on 23 May, did you?" This process is designed to challenge the evidence of the witness and give them an opportunity to respond to the other party’s case. Following cross-examination, the Claimant’s solicitor will be entitled to re-examine the witness. Re-examination gives the Claimant’s solicitor an opportunity to repair any damage/misunderstandings that may have arisen during cross-examination. At any stage of a hearing the Judge can intervene to ask a mix of open and leading questions. These processes are intended to produce evidence on oath or affirmation and versions of events which will assist the Judge in getting to the truth.
After the Claimant has closed his case, it is the turn of the Respondent to call their witnesses so the roles are reversed. Once the Respondent’s solicitor has led all their witnesses, both parties will make final submissions to the Judge on both the factual evidence and the application of the law to those facts.
The parties’ solicitors are officers of the court and have professional duties to adhere to but they also have their duty to put forward their client’s version of events.
The Judge should have listened carefully to all the evidence presented and will decide which version of events is accepted. The Judge is well placed to make this determination, having observed the evidence and demeanour of the witnesses. Demeanour is often a useful indication of the witness’s truthfulness.
The Judge will then state whose evidence he accepts and whose he rejects. He will also deliver his reasons orally or in a written judgment.