Future litigation assistance letter

Where an employee is leaving your employment and you were relying on them to give witness evidence at a hearing relating to an employment tribunal claim brought by another employee, you can use our letter to ask for their assistance.

Witness attendance

Where you’re defending an employment tribunal claim brought by a current or former employee, you can bring witnesses to the hearing if they can give evidence directly relevant to the case. This will usually be managers who were involved in dealing with the issue that led to the claim, but it could be one or more of the claimant’s work colleagues. It’s important your witnesses attend the hearing to give evidence in person, as the tribunal will place very little weight on the statement of a witness who’s not present. It’s also your responsibility to make sure your witnesses attend. If your witnesses are still employed by you, there’s normally no problem. However, if they’ve since left your employment, that could cause you a problem, particularly if their evidence is crucial to your defence. Unfortunately, unless you obtain a witness order, you can’t force a former employee to attend a hearing to give evidence on your behalf, and those who were dismissed or otherwise left your employment on bad terms are unlikely to be willing to co-operate. Therefore, our Future Litigation Assistance Letter is aimed at those who’ve resigned, as they’re more likely to be willing to assist you.

Letter content

Our letter assumes you’ve already received an employment tribunal claim lodged by a current or former employee (A), and the departing employee (B) is aware of that. Our letter asks whether B would be willing to appear as your witness, and so give evidence in person, at the tribunal hearing, assuming A’s claim progresses that far and isn’t withdrawn or settled in the meantime. If you already know the proposed hearing date, you can insert that. Our letter goes on to acknowledge that B’s attendance might involve them having to take time off work from their new job, so we’ve stated that you’ll only ask them to attend where their evidence is crucial to your defence. In addition, there’s an optional sentence enabling you to agree to pay either their reasonable expenses or loss of earnings incurred in consequence of their attendance. It then includes a form for B to complete and sign to indicate whether they’re willing to attend. Note that, even if B agrees at this stage, this doesn’t stop them changing their mind later.

Witness orders

Finally, if you ask a witness to attend and they refuse to come, it is possible to ask the tribunal to order them to come, provided their evidence is relevant to your case. You must apply in writing to the tribunal office well in advance of the hearing, giving the name and address of the witness, details of what they may be able to say and how it will help your case, and the reason they have refused to attend voluntarily (if they gave you one). Bear in mind though that “hostile” witnesses could do you more harm than good, so think carefully before asking the tribunal for a witness order to force someone to attend against their will.