WITNESS STATEMENTS AND FINDINGS OF DISHONESTY BY AN EMPLOYMENT TRIBUNAL: EDMUND BURKE CITED “YOUR REPRESENTATIVE OWES YOU, NOT HIS INDUSTRY ONLY, BUT HIS JUDGEMENT: AND HE BETRAYS YOU INSTEAD OF SERVING YOU IF HE SACRIFIES IT TO YOUR OPINION”

It is rare for this blog to look at Employment Tribunal decisions.  However examining the drafting of witness statements is part of its everyday fare.  Here we look at  a decision where the Tribunal was certain that witness statements had been drafted  in a way that, in the Tribunal’s view, was dishonest. This  had profound consequences. The claim was struck out and the claimants’ application to amend was refused.

(Edmund Burke’s Statue)

” as Edmund Burke observed in a different context, ‘Your representative owes you, not his industry only, but his judgement; and he betrays you instead of serving you if he sacrifices it to your opinion.’ Professional representatives in legal proceedings have duties both to their clients and to the Tribunal. They cannot merely act as conduits for claims they ought reasonably to have scrutinised, particularly where those claims involve straightforward factual assertions that could and should have been verified. The evidence presented in this case suggests an inadequate level of scrutiny was applied to the fundamental premise of these claims.”

KEY PRACTICE POINT

Edmund Burke’s point was right.  A representative is not a simple conduit.  In preparing witness statements a litigator must exercise their judgment. In this case it would involve the basic point of ensuring the statements are accurate.  A lawyer cannot simply act as a conduit. Claims have to be scrutinised and verified.

THE CASE

A copy of the Employment Tribunals decision in Powell and Others -v- A Gomez Limited (in administration) is available on LinkedIn, following a piece on the case by lawyer Thomas Fuller, a copy is available here. GomezJudgment

THE FACTS

The first respondent had gone into administration and its employees made redundant. Prior to that it had carried out a consultation process and 14 employees had been specifically involved in that consultation.  314 employees (which included the 14 who had participated in the consultation process “the elected representatives”) subsequently brought proceedings on the basis that there had never been a consultation process.  The defendant, in July 2024 pleaded, specifically, that there had been a consultation process and gave details of it.  The Tribunal held a preliminary hearing as to whether, in fact, there was a consultation as this went to its jurisdiction.

THE LATE CONCESSION AND THE APPLICATION TO AMEND

The evening before the hearing the Claimants’ representative filed a skeleton argument which “fundamentally changed” the way in which the claim was being brought. Rather than plead that there was no consultation it sought to argue that the consultation was inadequate.  Further there was an application to reduce the number of claimants from 314 to just the 14 elected representatives.

THE HISTORY AS SET OUT IN THE JUDGMENT

7. On 20 May 2024, 314 individual Claimants submitted ET1 claim forms to the Employment
Tribunal, alleging that the First Respondent had failed to comply with its collective consultation
obligations. The claims were brought by individuals rather than through employee
representatives, and all contained identical wording asserting that “no opportunity was given by
the Respondents to elect employee representatives.”

8. The First Respondent’s ET3 response, filed in July 2024, specifically contested this assertion and
provided details of the election process that had taken place in November 2023. Despite this
challenge to the foundational premise of their claims, the Claimants maintained their position that
no election had occurred. This position was sustained through the submission of 304 similarly
worded witness statements in January 2025, all reiterating the claim that no opportunity had been
given to elect representatives.

9. On 29 January 2025, Employment Judge Fitzgerald held a case management preliminary hearing
where the jurisdictional issue regarding the election of representatives was explicitly raised.
Following this, the First Respondent’s solicitors sent a costs warning letter dated 26 February
2025, which highlighted what they described as fundamental flaws in the Claimants’ case and
provided “in relatively clear detail, fact of the election.” Judge Fitzgerald ordered a preliminary
hearing to be held on 30 April 2025 specifically to address the jurisdictional question of whether
the Tribunal had jurisdiction to hear claims brought by individual Claimants under section 189
TULRCA if employee representatives had been elected.

10. The central factual dispute in this case was whether the First Respondent conducted an election
process for employee representatives as described in paragraphs 3-5 above. The Claimants
initially maintained no such election occurred, while the First Respondent contended it had fully
complied with its obligations under section 188A TULRCA. This dispute was ultimately resolved
by the Claimants’ concession during the hearing that the election had taken place.

THE TRIBUNALS CONCERNS AS TO HOW THE WITNESS STATEMENTS HAD COME TO BE SIGNED

24. When the Tribunal expressed concern that several Claimants who had signed witness statements
denying any election had occurred were themselves elected representatives, Mr OCallghan
suggested this represented a misunderstanding rather than dishonesty, arguing that “these
witnesses did not understand the process in terms of what they were actually signing.

26. Mr Fuller characterized the amendment application as an attempt to “get around the jurisdiction
point” that the First Respondent had raised consistently since filing its response. He argued that
the Claimants had “lied in their claim form” and “lied about there being no election of employee
representatives,” only conceding the point after their position became untenable in light of the
documentary evidence.

27. Addressing the Claimants’ explanations, Mr Fuller questioned why, if language barriers were an
issue, the representatives had not taken instructions from English-speaking Claimants. He
emphasized that CFS Redundancy Payments specialized in these types of claims and should
have been aware of the jurisdictional implications. He noted that the First Respondent had
incurred “significant timing cost in defending a position which was hopeless from the outset” and
argued it would face “further significant prejudice” if the amendment were allowed.

28. The Tribunal sought clarification from Mr OCallghan as to whether the Claimants now conceded
that the election process satisfied the requirements of section 188A of TULRCA, which he
confirmed was the case. The Tribunal also established that the original 304 witness statements
submitted before the January hearing were formal witness statements signed with statements of
truth, and that the new witness statements from the elected representatives had been served on
the First Respondent by the 4 April deadline set in Judge Fitzgerald’s directions.

THE CLAIM FORMS CONTAINED IDENTICAL WORDING (WHICH WERE ALL UNTRUE)

45. The ET1 claim forms submitted by the Claimants contained identical wording asserting that “no
opportunity was given by the Respondents to elect employee representatives…”. This formed the
foundational premise of their claims. The Claimants sought protective awards under section 189
of TULRCA based on this alleged failure.

48. In January 2025, 304 witness statements were submitted by the Claimants, all containing identical
wording at paragraph 6 stating: “I was not part of a trade union and no opportunity was given by
the respondents to elect employee representatives for those made redundant.” These statements
were signed with statements of truth by each individual Claimant. Notably, this assertion was
maintained even in statements from individuals who were later identified as having been among
the elected representatives, including Adriana Robinescu and several others

THE SIGNIFICANT SHIFT IN POSITION

51. In April 2025, 14 new witness statements were submitted from individuals identified as having
been elected representatives. These statements represented a significant shift in position,
acknowledging that an election process had occurred but contending that the subsequent
consultation was inadequate. The statements claimed these representatives had been “left
without information or an opportunity to consult meaningfully” and would “never have agreed to
stand had they been made aware of the process.”

59. On the balance of probabilities, and as evidenced by the claim forms themselves which were
brought to the Tribunal’s attention, the Tribunal finds as a fact that despite the election of
representatives having occurred, all 314 Claimants submitted ET1 forms in May 2024 asserting
that “no opportunity was given by the Respondents to elect employee representatives.” This

assertion was not merely a misunderstanding or mistake, but a fundamental misrepresentation of
the facts that went to the heart of the claims. The Tribunal considers it particularly significant that
at least 14 Claimants who were themselves elected representatives participated in this
misrepresentation, signing claim forms containing statements they must have known to be untrue.
This fact was not disputed during the hearing.

60. The documents presented to the Tribunal demonstrate that the Claimants were put on notice
about this factual inaccuracy through the First Respondent’s ET3 response dated 17 June 2024,
which clearly set out the chronology of the election process. Despite this, as evidenced by the
witness statements provided to the Tribunal, the Claimants maintained their position and
proceeded to submit 304 witness statements in January 2025, all containing identical wording at
paragraph 6 reiterating the claim that “no opportunity was given by the respondents to elect
employee representatives.” These statements were formal witness statements signed with
statements of truth, the making of false statements in which can constitute contempt of court.

THE TRIBUNAL FINDS THAT THERE WAS NOT A “FULL, HONEST AND ACCEPTABLE EXPLANATION”

63. On the balance of probabilities, the Tribunal finds that the explanation offered for this radical
change in position – difficulties in coordinating a large group of Claimants, language barriers, and
gradual clarification of the factual position – falls short of the “full honest and acceptable
explanation” required by Khudados v Leggate. The Tribunal rejects the suggestion that the
Claimants only became aware of the true position upon “further review of the first respondent
skeleton argument” received the previous week, as the evidence presented shows that the
fundamental facts about the election had been clearly set out in the ET3 response nearly a year
earlier and repeatedly raised thereafter. The language barrier explanation is particularly
unconvincing; on balance, it is inherently implausible that the 14 individuals who had been elected
as representatives, participated in the election process, and attended multiple consultation
meetings in English would not understand “the meaning of employee representatives” when
signing witness statements denying any election occurred.

64. From the evidence presented to the Tribunal, it is clear that there has been fundamental
dishonesty in the presentation of the Claimants’ case. The Tribunal is particularly troubled by the
fact that at least 14 individuals who signed witness statements denying any election had occurred
were themselves elected representatives who participated in the election process. As the Court
of Appeal noted in Arrowsmith v Nottingham Trent University, when statements central to a claim
are found to be untrue, this effectively constitutes a finding of dishonesty: “In our judgment, in a
case such as this, where there is such a clear-cut finding that the central allegation… was a lie, it
is perverse for the Tribunal to fail to conclude that the making of such a false allegation at the
heart of the claim does not constitute a person acting unreasonably.”

THE CLAIMANTS ARE NOT GOING TO BE PERMITTED TO AMEND A CASE THAT WAS INITIALLY BASED ON A FALSEHOOD

66. As required by Selkent, the Tribunal must “balance the injustice and hardship of allowing the
amendment against the injustice and hardship of refusing it.” While refusing the amendment
would mean that even the 14 elected representatives could not now pursue claims about
inadequate consultation (as the three-month time limit for bringing such claims has long since
expired), this consequence flows directly from their own participation in advancing claims they
knew or should have known were factually incorrect. Based on the evidence presented, the
injustice to the First Respondent of allowing the Claimants to completely change their case at the
eleventh hour after incurring significant costs defending against claims founded on a falsehood
would be considerable and unwarranted.

THE LEGAL REPRESENTATIVES HAVE DUTIES TO THEIR CLIENT

“67. The Tribunal notes Mr OCallghan’s submission that CFS Redundancy Payments drafted
documents based solely on instructions received from the Claimants. However, as Edmund Burke
observed in a different context, ‘Your representative owes you, not his industry only, but his
judgement; and he betrays you instead of serving you if he sacrifices it to your opinion.’
Professional representatives in legal proceedings have duties both to their clients and to the
Tribunal. They cannot merely act as conduits for claims they ought reasonably to have scrutinised,
particularly where those claims involve straightforward factual assertions that could and should
have been verified. The evidence presented in this case suggests an inadequate level of scrutiny
was applied to the fundamental premise of these claims.

68. The Tribunal finds it particularly concerning that the false premise of these claims might have
gone unchallenged had the administrators of the First Respondent chosen, as is not uncommon,
to take no active part in these proceedings. In such circumstances, the fundamental dishonesty
in the pleaded cases of 314 people — at least 14 of whom must have known they were dishonest
— would have proceeded unchecked, and judgment might have been granted on a false premise
based on a tissue of lies or untruths. That cannot stand. This underscores the important public
interest in honest litigation, particularly in tribunal proceedings where respondents in
administration may often lack the resources to actively challenge false claims.”

THE CLAIMS WERE STRUCK OUT

“79. The evidence indicates that there were multiple opportunities to correct the factually inaccurate
position maintained in these proceedings. Had the administrators of the First Respondent not
engaged legal representation to challenge these claims, the fundamental dishonesty in the
witness statements might have gone undetected, potentially resulting in awards based on
demonstrably false premises.
80. The Tribunal therefore strikes out all claims under Rule 38(1)(a) of the Employment Tribunal Rules
of Procedure 2024. Given the finding of fundamental dishonesty in the presentation of these
claims, the First Respondent may wish to make an application for costs under Rule 76. While
such an application is not before the Tribunal today, the judgment in Arrowsmith v Nottingham
Trent University suggests that advancing claims materially dependent on untrue assertions may
constitute unreasonable conduct for costs purposes.
81. The Tribunal acknowledges that some Claimants may have had legitimate grievances about the
adequacy of consultation, particularly given the abrupt termination of the consultation process
when the company entered administration. However, those concerns could only have been
properly ventilated through claims brought by the elected representatives within the statutory time
limit. The attempt to circumvent this requirement through false statements about the election
process has ultimately denied all Claimants any opportunity for remedy.”