Can a Tribunal strike out a case because the Claimant giving evidence misled the Tribunal and tampered with evidence?
Yes, absolutely. In the recent case of Sud v The Mayor and Burgesses of the London Borough of Hounslow, the EAT held that the Tribunal was correct to strike out a case when the Tribunal’s trust in the Claimant acting truthfully and in good faith was undermined as a result of her misleading the Tribunal and tampering with evidence. The EAT found that there was no way that a fair trial could take place when the Tribunal had lost faith in the credibility of the Claimant. Or to put it another way the Tribunal found the Claimant to be incredible.
This case got me thinking about the credibility of witnesses. In cases where the dispute is essentially fact based, the entire case may turn on whether or not a particular witness is credible.
It is important to note that credibility is not the same as reliability. Credibility is mostly concerned with whether the witness is telling the truth. A witness may be credible in the sense that the Judge is satisfied that they are honest and doing their best to tell the truth. Whereas reliability is more to do with good recollection.
The assessment of a witness’s credibility is for the Judge. The Judge will have to make choices about credibility and that often requires that one version of events is chosen over another. A lot will depend on the Judge’s impression of the witness’s evidence.
Giving evidence in the Employment Tribunal can be a daunting experience, particularly given that one of the main objectives of cross examination is to undermine the credibility of the witness.
The witness should be fully prepared.
Here are a few practical tips worth bearing in mind if you are appearing as a witness. A few of these may be taken as read but are important nonetheless.
- Always answer questions truthfully.
- Address your answers to the Judge (look at the Judge while answering the question and not the Solicitor asking it).
- Know your evidence.
- If you do not know or cannot remember something, then say so.
- Do not anticipate questions (let the Solicitor finish asking the question).
- Do not be surprised if the Judge interrupts to ask questions at any time.
- Take your time and do not feel rushed to answer.
- If you do not understand the question, say so and ask for it to be reformulated.
And remember, there is no such thing as a difficult question. Either you know the answer or you don’t. The overriding duty of the witness is to assist the Tribunal in understanding the factual issues in the case.