Putting your case: cross-examination in the employment tribunal

by Laurie Anstis on October 25, 2011

Cross-examination is the process of questioning your opponent’s witnesses. It takes center stage in many courtroom dramas, with the witness crumbling under the skilled questioning of the advocate.

In real life things are usually less dramatic, but it remains one of the most significant parts of any trial.

It is a basic rule of advocacy that during cross-examination you must “put your case” to the witness. That means that wherever there is a significant difference between what the witness is saying and what you or one of your witnesses have said or will say, you need to question the witness about that. The rule is described as “the cardinal rule of cross-examination” in the Bar Manual on Advocacy, [update 31/1/2014 – current version here] where it is set out in the following terms:

“You must put your case. You must challenge all material parts of the evidence given by witnesses called by your opponent which your client (or his or her witnesses) does not accept. If the witness says that your client “orally agreed to pay him £4,000” and your client denies both the agreement and the fact that the conversation ever took place, you must put these points to the witness. If you fail to do this, the judge will refuse to allow you to challenge your opponent’s version in your final speech. He or she will tell you that your failure to challenge that version is the equivalent of accepting it. That can inflict fatal damage on your case …

The rule is one which admits no exceptions. Our adversarial system of trial requires that witnesses be given the opportunity while in the box to answer the case presented contrary to their account of the facts. This does not mean that you have to challenge every unessential detail but you must cross-examine on material particulars.”

How does this rule apply in the employment tribunal, which is expressly supposed to “seek to avoid formality” and which “shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts” (rule 14(2) of the Employment Tribunals’ Rules of Procedure)?

This was a point which arose in the case of King v Royal Bank of Canada. The main points of the case are dealt with here, but the EAT in that case also took the opportunity to comment the significance of a failure to cross-examine in this way. In the King case, the Respondent said that it had dismissed the Claimant because her role was redundant. In her claim form and her witness statement, the Claimant said that she did not believe that redundancy was the real reason for her dismissal. However, when a manager gave evidence at the tribunal about what had happened in the meeting where she was dismissed, the Claimant (who was representing herself) did not challenge the manager about whether redundancy was the real reason for dismissal. This failure to challenge the manager’s evidence would usually mean that she should be taken to have accepted the manager’s evidence that redundancy was the real reason for her dismissal. The EAT said, at paragraphs 74 – 77:

“We do not think that a dispute necessarily ceases to be an issue in the case because a party – particularly a litigant in person – omits to cross-examine about it.

It seems to us that, once granted that an issue of importance has been fairly and squarely raised by a litigant … failure to cross-examine about that issue will usually be relevant to a tribunal in two ways.

Firstly, it may be implicit in the failure to cross-examine that the issue is no longer pursued. Whether this conclusion can be drawn will depend on all the circumstances. The conclusion may be easier to draw if a litigant is represented than if a litigant is in person, unaccustomed to the rules of cross-examination or to the orderly preparation of cross examination. In this case it would have been quite impossible for the Tribunal to draw that conclusion. The Claimant’s case …  was raised squarely and plainly by the claim form and witness statement; and she adhered to it when cross-examined.

Secondly, it may be unfair to the opposite party to reach an adverse conclusion on an issue where it has not been raised in cross-examination. If so, the tribunal ought not to reach a conclusion adverse to the opposite party without raising the matter, hearing submissions and if necessary recalling the relevant witness.”

In the King case, the EAT criticized the tribunal for simply making no findings on the important issue of the reason for dismissal. The fact that the Claimant had not challenged the manager about this could not, in that case, have been said to be an acceptance by her of the manager’s version of events. The employment tribunals’ less formal approach to rules of evidence will mean that it is not always appropriate to hold against a party their failure fully to put their case to a witness, particularly if they are representing themselves.

For more about employment law, check out my recommended books.