Evidence and witness statements for the employment tribunal

It is always useful to make a list of the key dates and events, so that you are clear about these and can quickly refer to them.

Next, you need to think about what evidence you have that backs up your arguments.

Each case is different. What are the key facts and issues for you? What is your employer likely to challenge?

This could include:

1.      Evidence of the problem

If you didn’t get paid as you should, that will be evidence of your payslips, hours worked, your contract, any relevant policies or procedures, letters or emails you sent or received about the problem etc.

If you experienced discrimination or harassment, that will be any evidence you have that the discrimination or harassment took place - a diary you kept, emails, text messages, details of any witnesses and what they said they saw.

You might also need evidence that the treatment you received wasn’t for a non-discriminatory reason, such as because you were not good at your job. Records of supervisions, evidence of your performance, and things like sales figures will help.

2.      If it is a discrimination claim (which includes bullying or harassment), you also need to keep evidence of how the discrimination made you feel, and any impact it had on your mental health as this will be important in assessing the amount of compensation you should get.

That might be text messages or emails you sent to family or friends, medical evidence that you went to see a doctor about it, or had to take medication, records of days you took off as a result of how you felt.

It is also important to record exactly which discriminatory words or phrases were used -so it is a good idea to send yourself an email or text (it is a useful way to make a record) of what was said and how it made you feel as close to the time that they were said as possible.

3.      Evidence of the amount of money it cost you (what the law calls ‘your losses’).

For example, if you have lost your job you will need payslips from your old job that show how much you were earning, and also payslips from any new job or statements of benefits you received.

Keep a diary of any expenses you had to pay while looking for a job – bus fares to interviews, printing costs of job applications, etc. See How to value your employment tribunal claim for more information.

4.      If you lost your job, evidence that you tried to reduce the amount of money it cost you.

For example, evidence that you tried to get another job – a record of jobs you applied for and/or recruitment agencies your registered with, or training you did.

This is to prevent your employer arguing that you did not do enough to find a new job.

September 2024

Sometimes you may think that your employer has some information about you and your case which you don’t have and would like to see. You have a right to ask them to give you this, and in most cases they should respond within a month and not charge you. This is called making a ‘subject access request’ (SAR).

This is a general right and can be used separately from the disclosure process referred to below.

The information that you can ask for and get like this includes emails about you (whether sent to you or not), HR records, and meeting notes.

Be as specific about what you are requesting as possible, as if you are unclear or ask for a very large amount, your employer might delay or to try to charge you.

You can find out more about how to make a subject access request on the ICO website.

Make a list of all the evidence that you have.

Both you and your employer must share information about all the evidence that you are aware of which is relevant to your case, even if it harms your case. You do not have to share any advice you have been given by an adviser or solicitor.

The Tribunal will tell you and your employer the dates by which you have to share the documents you have and how to do it. They can order that:

each side send all their documents to each other at the same time – often referred to as ‘List and Copy documents’.
each side send a list of the documents they have to each other and then each side requests what they want from the list.  There will usually be two dates in this kind of order - one for sending the list, and one for providing the documents.
the employer (who usually has the majority of the documents) send them first and then you (the claimant) can send anything extra.

Sharing this evidence is what lawyers call ‘disclosure’.

You can ask your employer to give you any documents that they have, that you do not – whether or not they think they are relevant. If they do not give them to you, tell the tribunal. You just need to email the tribunal and ask them to order the employer to give you the document, explaining why you think it is important. 

When your case goes to the Tribunal, all of the relevant documents that you or your employer want to refer to need to be put together for the Tribunal to review. This collection of documents is called the ‘bundle’, and can often be hundreds of pages long.

It is often an electronic bundle now, but you may receive it on paper.

The Tribunal will decide who should prepare the bundle – it is usually your employer’s responsibility.  You should make sure you have given them a copy of everything that you want included in the bundle by the date the court set. The court will also tell the employer when they need to have made the bundle by.

If they refuse to put something in the bundle or are difficult about anything, ask the clerk to the Tribunal for help.

When you receive the bundle, make sure it contains everything that you think is relevant. If something has been left out, let your employer know as soon as possible.

Read each document in the bundle carefully. This will ensure that you are aware of anything which your employer may use to support their argument. You may want to address these in your witness statement.

A witness statement sets out what an individual knows about the issue.

You should prepare your own witness statement. It is a very important document, as it is your sworn evidence about what happened. Once you have given it to your employer and the Tribunal, you cannot change it  - so it is important to take your time over it.

You won’t read your statement out at the Tribunal, the judge or panel will have already read it. But you (and every witness) can expect to be questioned about your statement. This is often referred to as being ‘cross-examined’. You will have a copy in front of you to refer to, but make sure you know what it says.

Getting witness statements from others

If there is anyone else whose evidence you think may be helpful to you, you can ask them to prepare a witness statement. For the Tribunal to give weight to their evidence, they will need to be ready to attend the hearing and be cross-examined.

People often agree to be a witness initially, but change their mind nearer the time. This is frustrating. You can ask the Tribunal for a witness order that compels them to come to give evidence. But if someone is unwilling to be a witness, or you are unsure whether their evidence will be helpful, it may be better not to have them as your witness.

What to do with the witness statements

Normally the Tribunal will tell you when to give each other your witness statements. You should ensure that you send your witness statement (and any others) to your employer at the same time as they send theirs to you. Usually you speak on the phone and agree to email them immediately.

Usually you cannot change a witness statement in response to what someone else’s statement says. This is why you send them at the same time. However, if you forgot to mention something important, the tribunal may allow you to use an additional statement (known as a supplementary statement) but this only happens in limited circumstances.

Next >> Representing yourself at employment tribunal

The information in this guide applies to England and Wales.

The law is complicated. We recommend you try to get advice from the sources we have suggested.

The cases we refer to are not always real but show a typical situation. We have included them to help you think about how to deal with your own situation. 

Acknowledgements

Advicenow is grateful to the Ministry of Justice for funding the creation of this guide under the Online Support and Advice Grant.

Advicenow would like to thank everyone who provided advice and feedback on this guide, particularly Chris Lake, Rebecca Thomas of 42BR Barristers, and editorial teams at Thomson Reuters who kindly peer reviewed it.

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