Employment tribunal

[needtoknow2]

Hi
The respondent in a case names an individual who will give evidence on their behalf at a full merits hearing. A bundle is prepared. The bundle contains statements from this individual. She is central to the respondent's case.
The full merits hearing is cancelled just after lockdown. A new case management hearing is arranged. During this new hearing the respondent pointed out that this individual would no longer be giving evidence.
The evidence of this individual and statements from her are still in the bundle. However, as she will be absent her evidence cannot be challenged.
Should I request that her statements are removed from the bundle? To be honest without these statements I fail to see how the respondent can effectively defend their position. This individual was the sole decision maker and organiser in the events that led to the claim. The individual got another job, apparently.

Who are you in this? The claimant? If she is crucial to the respondent’s case are they going to try and get an order for her to come?

A witness statement someone can’t be questioned about isn’t worth much so yes if the respondent is still trying to get it included in the bundle I would ask to have it taken out. You say statements plural though? Has this person prepared more than one witness statement?

I am the Claimant. The witness has got a job overseas and will not attend any subsequent hearings; the respondent's representative made this clear at the rescheduled case management hearing, post lockdown. The other statements that I refer to are the written statements that she provided for the grievance hearing and emails that she sent to the headteacher to explain her thought process when she appointed individuals.
The Respondent has included all of this in the bundle. Their other witnesses refer to her statements in their own statements.
My fear is that I will not be able to challenge the account of this now absent witness. She is pivotal to the whole matter.
The rescheduled full merits hearing is in November.
Prior to this point the respondent did not wish to take part in judicial mediation or settle this matter. Should I revisit these options?

The statement will probably come out (unless the tribunal agrees to accept it without the witness in attendance - which is unlikely) but the emails etc will all remain as evidence. They were never obliged to call her as a witness.

Relevant emails and documents from a relevant grievance hearing can certainly stay in the bundle- frequently documentary evidence from a relevant process is included even when the person who originally wrote it isn’t there. If there has been a grievance process you can’t have stuff from that process missing from the bundle because then the tribunal can’t get the full picture.

An email explanation from an appointing manager about their recruitment decisions should be included if the decision is being looked at as part of a claim.

The respondent’s case will probably be weakened if this person giving evidence was going to be key, but just because they’re not giving evidence doesn’t mean everything from them can or should be excluded.

If the respondent decides that they would in light of this prefer to settle or explore judicial mediation, they will say so.

Thank you for your prompt response. The appointing manager is the one that the allegation is levelled at but, of course, the respondent is the main organisation.

Without being able to question that person it will be difficult for the judge/panel to come to a conclusion I imagine, although it's difficult to guess whether that will benefit you or the respondent, because it depends on the details.

You say this was made clear at the case management? Did the judge say anything about it?

The judge said nothing. She just seemed grateful that the hearing would be reduced from four days to three days. I suspect the respondents will simply say that they accepted the absent witness's account. Of course, my view is that they accepted the account blindly without asking any probing questions and without reference to details which came out after the grievance in the agreed bundle.
My hope is that the witness's absence will work against the respondent. This individual, a senior leader, has avoided scrutiny and walked away from the responsibility of accounting for their actions.

The judge will consider whether just accepting the person's account without scrutiny was reasonable, and that will depend on the context obviously, the circumstances, nature of the role and a variety of other things.

But even if accepting someone's account was reasonable in the circumstances, that doesn't mean the law wasn't broken and it doesn't mean the employer isn't liable for it.

Thank you. Your last sentence in particular was very helpful. Can you think of any case law that supports this?

I can't really give you case law on the basis of the information here, but if you are a litigant in person the judge won't expect you to come up with it. Counsel often draws judges' attention to relevant cases but the judge will already know them anyway, and will know under what circumstances an employer is or isn't responsible for something.

Thanks again.