Silent majority

A recent EAT decision, Mehta v CSA [2010] UKEAT/127/10, points the way to a long overdue change in employment tribunal practice; namely that where an order has been made for the exchange of witness statements those statements should routinely stand as the evidence-in-chief of witnesses, and that in all regions, not just some, the reading out of a witness statement should become exceptional.

The claimant was unrepresented in an unfair dismissal case listed for two days. At the end of a slow first day in which two of the respondent's three witnesses had read their statements aloud, the employment judge obtained the consent of the parties for the tribunal to read for themselves the statement of the respondent's third witness and the claimant's own statement.

Following an adverse finding, the claimant appealed, asserting that she had not understood that by the judge's proposal she would not also be able to read her statement aloud, and that she was disadvantaged in that none of her evidence-in-chief was heard live, whereas most of the respondent's witnesses were so heard.

The EAT dismissed her appeal having found that the judge had done what she could to obtain the claimant's informed consent to the proposal of not taking further evidence-in-chief live, and observing that unrepresented parties, proper allowances being made, had to be held responsible for what they agreed to in the course of proceedings.

The claimant's argument of procedural unfairness could not have become the subject of an appeal but for the continued practice in some regions of witness statements commonly being read out. Witness statements are not ordered in all cases, and it is not argued here that they should be. But what is argued is that where they have been ordered the strong presumption should be that those statements stand as evidence-in-chief. Such a cultural shift would be consistent with the position in mainstream civil litigation where, unless the court orders otherwise, a witness statement is treated as the oral evidence-in-chief of the witness (CPR 32.5(2)).

Saving time and money

It is the overriding objective of both the CPR and the ET regulations that the court/tribunal deals with cases justly, and, although the criteria by which that objective is achieved differs between the two sets of rules, they have in common that dealing with a case justly includes, so far as is practicable, ensuring that it is dealt with expeditiously, and by saving expense.

Even if tribunal members were to read statements to themselves when the tribunal is actually sitting, there would be a saving of time as against witnesses laboriously reading out statements '“ not infrequently with hesitations and backtracking. But the real benefit would be where tribunals are able to read statements before a sitting or during a recess. Where this is done in a case with, for example, six witnesses it is easy to envisage a half-day saving in sitting time.

The increased use of taking witness statements as read would enable proceedings to move more quickly, reduce legal costs to clients, reduce business costs through shorter employee absence caused by case attendance, and would enable tribunals to move more quickly through their current heavy caseloads. In short, there would be a saving in expense and a more expeditious processing of cases, and so a more frequent fulfilling of the overriding objective of the ET regulations.

Of course this would only ever be a presumption. If a litigant in person had drafted witness statements that were confusing or barely intelligible, a judge might decide to take that party's witnesses' evidence-in-chief live so as to make sense of their evidence. The argument is not that evidence-in-chief should never be given live, but that there should be a good reason for departing from the time-saving alternative.

Time for a change?

So, should there be a rule change, bringing the ET rules of procedure into line with the CPR? On the next amendment of the ET rules it is suggested that the introduction of a rule mirroring CPR 32.5(2) would be an improvement, but only because the purpose of the CPR, the FPR and the ET rules has partly been educative and these rules have sought not just to provide the rules of the game but also to change the culture in which judges and lawyers operate.

But, while to such end a rule change would be welcome, it is not necessary. Rule 10 of the ET rules empowers an employment judge to make such an order as he thinks fit, and many tribunals in many regions do decide to take witness statements as read. But rule 10(2)(s) specifically alerts judges to the possibility of ordering that witness statements be prepared and exchanged, and it is suggested here that as a standard direction to the parties it should be added 'that unless the tribunal hearing the case otherwise orders, each exchanged witness statement be treated as the oral evidence-in-chief of that witness'.

This would be a step forward in achieving the overriding objective of the ET regulations.