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11/07/2012 - Effective use of witnesses in disciplinary and grievance proceedings

Witness evidence is often crucial to disciplinary and grievance investigations. Any person who wishes to rely on witness evidence should seek to obtain it in a quick and confidential manner. It is important to note that there is no property in a witness and so the witness is free to give evidence to the employer, employee or even to neither of them (although in the latter case this may expose them to disciplinary proceedings depending on their level of seniority and contractual provisions).

Employers should pay regard to the implied duty of mutual trust and confidence when gathering evidence. As such, it should limit investigations to that which is reasonably required and this includes access to witnesses.

All relevant evidence should be disclosed in advance of any formal hearing. This will usually include the names of any witnesses (except as below) and the employee should be asked whether they wish to call any witnesses.

What if the witness wishes to remain anonymous?
A party is entitled to know the case against it and this is difficult if a relevant witness does not wish to be named. You should therefore ascertain the reason for any request for anonymity and then make a decision about whether it is appropriate or not. It is likely to be appropriate where the witness fears physical violence, bullying or harassment. There is also a general presumption in disciplinary proceedings that anonymity may be preserved but the following guidance should be adhered to:

• Put the witness evidence into a written statement which should cover the date, time and place of the incident, the facts observed (and how), other circumstantial evidence (e.g., knowledge of wording arrangements and why small details can be recalled) and whether the witness has any reason to fabricate evidence.
• Obtain further evidence to support the witness statement if appropriate.
• Those conducting the hearing should interview the witness and decide what weight should be attached to the evidence given.
• Disclose a redacted version of the witness statement to the accused.
• Follow up any issues raised by the accused during the hearing as appropriate.
• Take a proper note of the hearing.

Witness attendance at a hearing
An employee should be given a reasonable opportunity to call witnesses at a hearing providing he has given prior notice of his intention to do this. An employee should also be given an opportunity to raise points about information given by any witness.

An employee will not always be entitled to cross-examine a witness. You will need to assess whether it is reasonable and fair in the circumstances of the case. This may well be the case where a decision to dismiss turns on a crucial factual issue which is the subject of conflicting evidence, although the case of Gillen v Taunton & Somerset NHS Trust [2005] decided that a patient who accused a doctor of serious sexual misconduct should not be subject to cross-examination as the doctor had been given an opportunity to present his case and thus a fair hearing was achieved.

It will usually be the case that you can justify the non-attendance of an anonymous witness. It may also be appropriate in some cases to exclude the accused from part of a hearing so a witness can give evidence, for example, where a witness feels intimidated by the accused.

Authored by:

Catharine Geddes (show profile)

Published by:

Allison Grant (show profile)

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News (show all News)