Preparing for Cross-Examination in the Employment Tribunal

In short, cross-examination is what you see on television: it's when both parties get to ask questions of the other side's witnesses. It often, however, is not as dramatic as television portrays but takes a lot of preparation. As such, parties and representatives need to understand how this process works in order to be best prepared for a tribunal hearing. This blog post will provide an introduction to cross-examination in the employment tribunal and how parties can make the most of this process.

The Role of Cross-Examination

Cross-examination in the employment tribunal is an essential part of the employment tribunal hearing process and can play a key part in determining the outcome of a case. It provides an opportunity for both parties to ask pertinent and relevant questions to the other side's witnesses; to challenge the other side's evidence and challenge any assertions that are presented during the proceedings. It helps ensure that all facts are laid out on the table for consideration and assessment by the tribunal panel when making its decision. Additionally, cross-examination can be used to test witnesses' credibility and reliability, as well as their knowledge on relevant matters concerning their testimony.

If you do not challenge something that is in the statement that you disagree with you may be treated as having accepted what that witness has said on this issue. This is called "putting your case" and is vital to understand, as your claim could be dismissed because a point was not "put to the witness".

Preparing for Cross-Examination in the Employment Tribunal

Effective cross-examination starts well before the tribunal hearing with proper preparation. Before the hearing, it is important to review the witness statements and evidence provided by the witness you want to be cross-examined. Once you have a better understanding of the witness and their testimony, you can prepare a list of questions to ask during cross-examination.

This will involve having to hand a list of the documents you want to take the witness to when asking them questions: very little will impact your questioning more negatively than having to repeatedly flick through the bundle to find a document you want to show the witness: have these numbers to hand will demonstrate you are serious about your case and have prepared for it.

Conducting Effective Cross-Examination in the Employment Tribunal

During cross-examination, it is important to ask leading questions that suggest a particular answer e.g rather than asking "What is the weather like?" which is open and gives the witness an opportunity to speak freely, ask instead: "it is raining today isn't it?" as this restricts the answers that can properly be given. Additionally, be sure to listen carefully to the witness's answers and follow up with additional questions to clarify or expand upon their testimony.

Whilst the employment tribunal will provide some assistance to unrepresented parties to ensure they are not unfairly disadvantaged by not having a barrister or other representative, the employment tribunal cannot, and will. not, run their case for you.

Handling Difficult Witnesses during Cross-Examination

In some cases, witnesses being cross-examined may be hostile or uncooperative. It is important to remain calm and composed in these situations and to avoid getting into arguments or confrontations. If a witness is evasive or non-responsive, you may need to challenge their testimony by pointing out contradictions or inconsistencies in their answers. Do remember that being cross-examined during a tribunal hearing is a stressful and often unpleasant experience, so a witness may feel upset.

Objecting to Inappropriate Questions During Cross-Examination

During cross-examination, it is important to understand the grounds for any objection and to know when and how to object. Again, this is not like it is portrayed on television, with representatives jumping up shouting "objection!". If an opposing barrister or representative asks an inappropriate or irrelevant question, you can object to the question and ask the employment tribunal to consider your objection. If your objection is correct, the opposing side will not be allowed to ask the question again. However, it is not appropriate to object to a question simply because you do not agree with it or like it.

Common Errors in cross Examination

Lack of Preparation:

One of the most common errors parties in a tribunal hearing make is inadequate preparation. They often fail to review the relevant documents and procedural rules applicable to the case, and this can negatively impact their cross-examination strategy. Look at the list of Issues in the claim: that will set out what the tribunal is being asked to decide and so will give you a roadmap of what the tribunal want to hear about and so guide you as to your cross-examination in the employment tribunal.

How to reduce this error:

• Review all relevant documents, including witness statements, contracts, emails, and other correspondence.
• Research applicable laws and regulations governing your case.
• Familiarise yourself with the tribunal's procedural rules.
• Develop a clear cross-examination strategy, identifying the key points, and documents you want to establish with each witness.

Not Asking Questions:

It may sound strange, but often in cross-examination in the employment tribunal parties forget to ask a question. All too often the questioner will make a speech or make a point, but not actually seek an answer from the witness. You will get an opportunity to make a closing speech later in the hearing.

How to Reduce this Error:

• prepare your questions in advance: know why you are asking it;
• know what issue the question goes to: does it go to the issue of was there a dismissal, was this discrimination, the tribunal will not want to get involved in a general review of the working relationship: it will focus on the list of issues

Arguing with the Witness:

Another common error is engaging in arguments with witnesses. This can detract from the purpose of cross-examination and make the questioner appear unprofessional.

How to reduce this error:

• Maintain a professional and respectful demeanour throughout the cross-examination: this may be difficult as the witness may be fellow employees or management and people you considered to be friends, so emotions may run high, especially if the claim contains allegations of discrimination;
• Focus on asking questions that highlight inconsistencies or weaknesses in the witness's testimony;
• If the witness becomes argumentative, remain calm and redirect the conversation to the relevant issues.

Failing to Adapt to the Witness's Responses:

Parties regularly struggle to adapt their cross-examination strategy and questions when witnesses provide unexpected answers. This can result in the questioner losing control of the process and missing opportunities to challenge the witness's testimony effectively.

How to reduce this error:

• Be prepared for the witness to provide unexpected answers.
• Be flexible and willing to adjust your cross-examination strategy as needed.
• Listen carefully to the witness's responses and use them to inform your subsequent questions.

Overwhelming the Witness with Documents and Lengthy Questions:

Parties often present witnesses with numerous documents during a single question, which can confuse and overwhelm both the witness and the tribunal. This approach can make it difficult for the questioner to establish a clear narrative and effectively challenge the witness's testimony. Ask a single question at a time and refer to one document at a time.

How to reduce this error:

• Organise your documents in a logical manner before the hearing.
• Only present documents that are directly relevant to the point you are trying to establish.
• Give the witness and tribunal members sufficient time to review each document before asking questions about it.

Conclusion

Effective cross-examination is an essential skill for litigants in person in employment tribunal hearings. By preparing properly, conducting effective cross-examination, handling difficult witnesses, and objecting to inappropriate questions, you can present your case in a clear and effective manner.