Advice re attending Tribunal as Defence Witness

[Inacourtoflaw]

Going to try and condense a long story into a short one. I’ve also NC for obvious reasons.

I have been asked to attend a 3 day tribunal as a witness defending my prior employer. The individual raising the case is claiming unfair dismissal. I was the line manager at the time of the dismissal but the decision to dismiss for gross misconduct was made independently (and was also upheld at appeal). The individual is now claiming the dismissal was a part of a broader plan to bully them out. My name is cited throughout the claim.

My prior employer believes we have a strong defence and again without going into detail, the claims are outright lies and utter fabrication.

Am I legally obliged to attend / be a witness given I have left the company? 3 days out of my new job is going to be tough and I’m already stressed out by the thought of cross examination etc. Part of me wants to attend to clear my own name (though the claim is obviously against the employer rather than me personally) but I don’t feel I owe anything to my prior employer as I had a pretty miserable few years there and I don’t remain in contact with anyone. They seemed surprised when I asked if I was contractually obliged or not and didn’t really answer the question.

Advice anyone?

The citizens advice page for England implies you don’t need to attend but that they can make you attend if they get a writ, I can’t remember the terminology. Have a read. It gives a phone number to call them on if you have questions. May be worth a go?

In Scotland if you don't voluntarily attend you can be cited to attend

If there’s a risk of being forced I’d rather attend voluntarily. I’m stressed out about it though

You can be made to attend, but if you strongly say you are not willing, the defending party won't be likely to ask the tribunal to force you.

After all you could simply say it was all a while ago, you don't work there any more, and you don't remember any details clearly.

There would be lots of meetings and agreeing your testimony etc- all much more than three days. Hearings are also frequently cancelled, delayed or postponed, so it could go on well over a year.

Don't let yourself be forced into this unless you are really willing- it's a lot of time, effort and emotion- and you gain nothing from it.

In your situation I would push back strongly stating that it would be detrimental to your MH to attend as a witness. Put something vague that cannot be argued against such as not having a recollection of past events which happened several years ago.

You have no need to clear your name - to whom? You are in a new role now in a different organisation so whatever happened back is in the past and just because a former disgruntled employee chooses to try and drag you back into the circumstances doesn't mean you're a valid witness if you don't want to participate If they had an issue about your management approach they should have addressed it at the time.

Don't get dragged back in is my advice. Distance yourself from the whole situation.

I'd take the opposite view. Attend and don't have your name tainted, especially if the type of work you do has professional connections or social networks whereby your names could be sullied

You can’t be forced to attend unless the Respondent applies for a witness order. If they succeed and you still fail to attend then you’d be in contempt which is a criminal offence.

However... IME witness orders are nearly never used. I’ve only seen one in 15 years because frankly, unless someone wants to attend voluntarily, their evidence is unlikely to be helpful because a) they’ve demonstrated a degree of hostility through their refusal to attend and b) you have no idea what they will say and that’s the worst case scenario for lawyers!

If you did want to attend you wouldn’t have to do all 3 days - each party calls their witnesses in whichever order they choose and it’s usually easy to determine who will be needed to give evidence on which day. So you could agree, but make clear it’s only for one day.

Or you could agree to provide a statement but not to attend, although that statement would be given very little weight.

I'm no expert on this topic but I am surprised that you are being called now about a case that is a few years old?

I was to be a witness in a case but it only happened last year and was already really out of timescale.

Thanks for the responses. The matter is dated, in that the dismissal was c. 12 months ago but now they have chosen to ‘widen the issue’ the period of time in question goes back a number of years.

I have requested and been sent a bunch of evidence which has already made my blood boil. It also seems a mixture of complainant and defendant evidence? A handful of character witnesses for them which are anonymised but I could write the names of the authors on top of the page no problem - the individuals drinking buddies. They claim vagaries such as ‘I saw X treated poorly by senior leadership’ - will they be called to give examples of this??! As I’d love to hear them!!! Otherwise I assume they won’t be worth the paper they are written on.

I still feel torn. It is going to take a good deal of my time to go through all the documents and the tribunal claim and point out factual inaccuracy / give my comment. I don’t owe anything to my prior employer nor anyone there. But I do work in an industry which IS reputation based and I am so angry at the nature of the claims made by a complete chancer there is a big part of me that does want to put the statement together and be there to calmly answer any cross examination. Worst case scenario would be I attend and we lose on a technicality, which I know can happen. God, stress.

Worst case scenario would be I attend and we lose on a technicality, which I know can happen

I really have to question your assertion " we lose on a technicality". Surely it isn't your case to win or lose, either by technicality or otherwise.

You're allowing yourself to get sucked into this whole (pardon the expression) shitstorm, despite the fact the evidence is flakey, inaccurate and likely very difficult to prove other than people like you being prepared to stick your head above the parapet. For what benefit? What do you stand to gain?

If you're in a different company and you're making your mark and building your own reputation, you could be tarred by the brush of someone who you've described as a "chancer" by getting involved.

I wouldn't invest a second of your life in contributing to it, but it's your choice. You've had the expert opinions about what you might be legally obliged to do, but to my earlier point, if you state you are reluctant to be a witness to circumstances that happened a significant time ago and to which you wouldn't be a willing contributor, the likelihood is they won't see you as suitable or reliable.

A similar thing happened to me but the complaint was dropped the week we were meant to go to court (as there was 0 chance of her winning - I am sure she was just trying to get some money out of the company). My old company said they would pay me a days pay to attend as I would have lost a days pay from my new place.

I would have hated if I hadn't gone and she had won - it was such a fabricated case and I don't work in a small industry so it was just my personal pride.

@daisychain01 I think your comment is fair - I probably am too emotionally invested in this hence the “we”. I suppose I have a real sense of right and wrong and the thought of the chancer getting away with 6 figures is a lot to bear.

@Redcliff I’m privately hoping that is the case. I would prefer the case wasn’t settled for money as that implies a doubt. However I believe the claimant is backed by a union and I don’t believe they would have to pay any costs, so I guess they have nothing to lose. I’m just incredulous some people can be so blatantly dishonest.

@inacourtoflaw I sincerely hope it doesn't make it to court. Albeit I am completely with you as regards it being distasteful and hopefully that person not being rewarded for bad behaviour by getting a settlement if they don't deserve one, there could be many twists and turns this case that makes them believe they have been wronged. One thing's for sure, they are bringing a significant amount of stress and expense on themselves and now potentially stress onto you, by trying to bring the case to court and broadening the scope.

I hope you are able to reconcile whatever decision you decide to make according to your own ethical perspective, just protect yourself whatever you do! All the best.

Also bear in mind Tribunal compensatory amounts are rarely telephone numbers. By the time legal costs are taken away the residual sum is invariably modest compared to the financial and emotional cost of taking the case to tribunal.

Aren't tribunal decisions published? If you're directly named could you be named in any decision, or would you be anonymised? I'd want to check that if I were you as it would make a big difference to whether it seemed worth appearing to try and correct the record.

The individual is still claiming they are unable to work due to the depression and anxiety the dismissal over 12 months ago has caused.

The claim is against LLP not me personally.

I think you still need to check what could be published. I was quite shocked to find online full details of an employment tribunal case for where I work, with lots of people named (and the case was against the employer, not them). If a reserved (written) decision is given then it lists a lot of detail, including evidence given by witnesses: www.employ.law/online-publication-of-employment-tribunal-decisions/

I might be completely wrong and it wouldn't apply to this kind of case at all, but I'd want to check if it were me - and also check what could be in the press if the company are well-known enough or the ex-employee's claims are outlandish/dramatic enough that it might get reported (after all, even local rags are googleable now)

Wow - thank you very much. That is a concern.

Not sure whether that makes me more or less inclined to be involved.