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Mitigating risk in employment tribunals

Unfair dismissal. Discrimination. Breach of contract. None of these spell good news for HR professionals and more often than not, they hint at long disputes and big financial losses. The outcome of an employment tribunal is always hinged on the evidence, and those called to give it should be trained for the purpose.

As an expert witness in employment, I've been on the receiving end of some of the most savage lawyers in the business. The tribunal environment is no exception, and if you (or your employees) are preparing to give evidence at a hearing, it's crucial that you understand your role. When all is said and done, the outcome is not concerned with the facts of the case, but whether you can prove them in court.

First-time witnesses can pose a serious risk to your efforts, simply because they don't know what being a witness involves. Who do I address? What do I say? How do I say it? How long will I be questioned? These are some of the common questions asked by lay witnesses before their hearings. All of a sudden, they're thrown into a high-pressure environment and often find themselves at the mercy of an opposing barrister, who will stop at nothing to refute them.

Cross-examination is where much of the battle is decided. It is here that unwitting employees can commit serious blunders under closed questioning, sometimes with a simple yes/no answer. It is important to remember that there is also no set time for this harrowing experience - I was once questioned for five hours!

Barristers thrive on the inexperience of a witness, and seek to expose errors or inconsistencies in any given statement, taking valuable information out of play. Whether you're in court or at a tribunal, the devil is in the detail and a good advocate can tilt the balance of a case with the most trivial of questions. Some examples I've encountered: 'Is a CV a factual document?' 'What do you know about particle physics?' 'How many times have you been on an oil rig?' 'What is the definition of cream?' 'Do you think the claimant is intelligent?'

Not knowing how to answer these seemingly 'innocent' queries can land a witness between a rock and a hard place. Barristers will try to undermine your statement, break your confidence or cause you to admit evidence which is detrimental to your case. In the witness box, even the most credible person can find themselves on the back foot and this can mean the difference between a win and a big pay-out.

Witness Familiarisation can be a valuable risk-management tool in the courtroom, and with compensation limits set to rise this month, preparing yourself for the legal arena is more important than ever… ask Alan Sugar.

Trevor Gilbert (pictured) expert witness in employment and founder of witnessbox.com