Reluctant Witnesses

George Heron

George Heron

Email Click to email
Phone 01952 566918

28 September 2016

Disciplinary proceedings against employees, particularly in cases of misconduct, often hinge on the evidence of witnesses. When establishing the true facts of a situation, any witness will clearly be of significant interest. It is important that employees who are facing proceedings of this nature are aware of the case against them and it is therefore necessary for written evidence the employer may be reliant on to be provided to the employee at least two clear days in advance of the hearing. Where a witness is particularly significant, it may also be necessary to call them into the hearing.

As an employer, it can therefore make life very difficult when you are faced with a reluctant witness. Where a witness refuses to give written evidence or appear at a hearing, what options are open to you?

If the witness is another employee, you can remind them of their obligations of ‘good faith and fidelity’ to you. Refusing to act as a witness could be said to run contrary to this. However, whilst you can potentially establish an implied obligation for management/supervisors to report on their colleagues’ misconduct, this is less likely to be the case for junior members of staff.

A second option is to look at anonymising the statement. This will involve examining the reasons why the witness may appear reticent to give evidence. If they genuinely fear that they will be the subject of reprisals in the event that they give evidence, then anonymising their statements may well be a reasonable course of action.

It must be stressed that the subject of the hearing should still be provided a copy of the anonymised statement and it should be ensured that this still provides enough information for them to answer the case against them. If, during the course of the hearing, the individual raises issues with the evidence which need to be put to the witness, it may be necessary to adjourn the hearing in order to make these enquiries.

At Alpha, we have a vast experience in providing bespoke, practical advice on HR and employment law issues. This includes providing specific advice on how to deal with various complications that can arise during a disciplinary process. We are proud of our commercial outlook and do not sit on the fence. If you would like to have Alpha on your side, please feel free to contact us.


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