Witnesses in a settlement agreement negotiation - for employees only


Often, the incidents which you plan to bring to your employer’s attention in the course of a negotiation will have been witnessed by a colleague. You may want to consider asking them to be a witness to support you in your negotiation. You may be surprised to learn that this is not usually a good idea during a negotiation for the following reasons:


When witnesses can’t be of much help

  1. An employer will usually want any settlement agreement to be confidential. This includes the facts of the allegations you intend to make being kept confidential from other employees. If you ask other employees to be witnesses then you will necessarily disclose facts of your case to other employees, making the employer less likely to agree to a settlement agreement.


  1. Witnesses are only useful to support disputed allegations. Often in employment negotiations, if allegations are disputed then they usually remain disputed, but the parties agree to disagree and settle. If witness evidence, such as a witness statement, is produced, the employer is likely to instruct lawyers and start to defend the allegations, which is not what you want to happen.


  1. Witnesses are only useful in live hearings, or for providing a witness statement. During negotiations neither of these forms of witness evidence usually arise.


When witnesses are most valuable

If, however, you have been subject to discrimination or harassment and the only way you can make your case to your employer is by using witness evidence, then you may want to consider approaching your colleagues to provide evidence in support of your claims. Be aware though that very often your colleagues won’t want to get involved. They may not want to stick their necks out for you and expose themselves to the same problems you have suffered, or they may simply disagree with you.


Very often at Employment Tribunals for discrimination claims, the complainant is the only witness because no one in the company will come forward in support of the complainant. Therefore, don’t be surprised if, when you approach a colleague to be a witness, he or she is reticent or flat out refuses.


What form should witness evidence take?

If you are going to approach witnesses, the best way of gathering evidence is to ask them to make a witness statement and then sign and date it. Alternatively, if you raise a grievance, you can ask the company to interview witnesses for you, although this may well let the employer pressurise the witnesses into giving evidence favourable to them and not you.