Witness statements in Scottish Employment Tribunals

There are Employment Tribunals spread across the length of Great Britain. Whether parties are seeking a resolution to their employment dispute in London, Cardiff, Leeds, Glasgow or Inverness, the fundamental function of the Tribunal does not differ by location or jurisdiction. Similarly, the legal points being argued within the Tribunal walls are largely derived from the same UK-wide statutory sources. On that basis, it may be easy to assume that all disputes are dealt with and managed by Tribunals in the same way, regardless of whether they are in Scotland or England and Wales.

Interestingly, significant differences do exist between Employment Tribunal procedure in Scotland and England & Wales. One of the most fundamental differences between the two jurisdictions is in relation to how evidence is given and the use of witness statements.

In Scotland, the presumption is that evidence will be given orally by the witness in Tribunal. Accordingly, witness statements are not produced, lodged or shared with the Tribunal or any other party to the dispute. This contrasts with the position in England & Wales, where witness statements are used as a matter of course. While the usual process is to proceed with oral evidence in Scotland, the Tribunal may order the use of witness statements in a particular case if it considers it appropriate in the circumstances and in the interests of justice to do so. An English lawyer appearing in Scotland may welcome this opportunity to align more closely with English practice, however, the preparation of Scottish witness statements comes with its own quirks to be mindful of, further departing from the procedure in England & Wales.

Preparation and use of witness statements in Scotland

The President of Employment Tribunals (Scotland) has issued detailed presidential guidance on the preparation and use of witness statements (Scotland) (2022) to assist practitioners and parties in understanding the format, content and preparation of statements. Witness statements in Scotland should follow a certain format with rules governing numbering, spacing, margins, headings, structure, use of abbreviations and the requirement to include a list and description of the documents referred to in the statement. In order to correctly head a witness statement in Scotland, the name of the witness, their occupation, their connection to the party to the claim and their address are to be specified on the right-hand side of the front page of the statement.

Dos and don’ts

Within the guidance, there are guidelines on the dos and don’ts for those involved in the preparation of witness statements in relation to asking questions to elicit evidence and the wording to be used in the statement itself. The statements should:

• be as succinct as possible
• be drafted in the first person
• be in the witness’s own words
• only contain factual evidence that needs to be proved and that the witness has personal knowledge.
• include any evidence on remedy.

Unlike Tribunals in England & Wales, the issues of liability and remedy are usually considered together at one final hearing. A witness statement should therefore ensure it contains the relevant evidence on this important issue.

Further, and in accordance with practice direction on the use of witness statements (Scotland) (2022), each witness statement should:

• describe in an introductory paragraph how it was taken – this may be by a face-to-face interview between the witness and a party’s representative, or by a telephone call, or by an exchange of emails or other documents, or by some other method.
• be concluded with a witness confirmation of truth in the prescribed form, signed and dated. This differs from the practice in England & Wales, where witness statements are not required to include a statement of truth, although parties may include one voluntarily.

If a representative has been involved in the preparation of the witness statement in Scotland, there is a further confirmation to be appended to the statement. This must confirm that:

1. They are a professional representative within the meaning of the practice direction on the use of witness statements.
2. the terms and effect of the witness confirmation have been discussed with and explained to the witness.
3. they believe the witness statement complies the practice direction and that it has been prepared taking into account the presidential guidance on the preparation and use of witness statements. This confirmation must also be signed and dated by the representative.

Key takeaway

It is important to understand the procedural nuances of the jurisdiction in which an Employment Tribunal claim is heard. Practitioners or parties appearing in Scotland should be mindful that where written statements are permitted, the format, content and formalities are different from those in English and Welsh Tribunals. A clear understanding of the expectations is crucial to ensuring evidence is presented effectively and in line with Tribunal guidance.

How we can help

If you need support on any of the issues raised in this article, please contact Dawn Dickson or Ana Brocklebank, who will be able to assist.