Cross Examining Witnesses in Disciplinary Hearings

Although unlikely to lack the theatrics of A Few Good Man in certain circumstances cross examination of witnesses may be an appropriate tactic.
Although likely to lack the theatrics of A Few Good Man in certain circumstances cross examination of witnesses may be an appropriate tactic.

In an Employment Tribunal hearing the cross examination of witnesses represents the majority of a disciplinary hearing. By contrast in a misconduct hearing of an employee the overwhelming majority of hearings will feature no cross examination of witnesses at all.

As was set out in R (Bonhoeffer) v General Medical Council in certain circumstances the refusal to allow an employee the right to cross examine would represent a denial of an employee’s right to a fair trial and amount to a breach of the their Article 6 ECHR rights. In practice though this is unlikely to apply to most disciplinary hearings and only where the right to practice their profession rather than just current job is at risk.

The ACAS Code of Practice on Disciplinary and Grievance Procedures does not give an expectation that an employee must be allowed to call and cross examine an employee but it does go someway to suggesting that this may be appropriate. Paragraph 12 suggests that an employer:

The employee should be allowed to set out their case and answer any allegations that have been made.The employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do this.

In my experience employees subject to misconduct proceedings do sometimes seize on the idea to cross examine an employee (usually an individual who who has made a grievance). I nearly always think this is a bad idea and thankfully have nearly always been successful in dissuading them. Many times the reason is simply some employees are incensed by what  has happening to them and the opportunity to vent some of that frustration seems an attractive one.

Other times the case against cross examination comes down to two issues. First, there is no independent verification and the allegation relies on one person’s word against another. In such cases I prefer to argue that in the circumstances (when an employee has a clean disciplinary record) and credibility has not been questioned in an investigation it is appropriate to give the benefit of the doubt following the advice in Salford Royal NHS Foundation Trust v Roldan (paragraph 73) that:

The second point raised by this appeal concerns the approach of employers to allegations of misconduct where, as in this case, the evidence consists of diametrically conflicting accounts of an alleged incident with no, or very little, other evidence to provide corroboration one way or the other. Employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred. But they are not obliged to believe one employee and to disbelieve another. Sometimes the apparent conflict may not be as fundamental as it seems; it may be that each party is genuinely seeking to tell the truth but is perceiving events from his or her own vantage point. Even where that does not appear to be so, there will be cases where it is perfectly proper for the employers to say that they are not satisfied that they can resolve the conflict of evidence and accordingly do not find the case proved.

Second, there are cases where the credibility of the opposing side can be impugned with documentary evidence – which may or may not have been considered in the disciplinary investigation. In such circumstances I do not see what benefit it would be for the employee to cross examine the witness – the smoking gun is already in their hands and cross examining would only risk the value of the evidence being lessened by the opportunity to be explained.

However, employee representatives will want to know that if a cross examination is requested and an employee is refused, especially where the accusations or consequences are serious, then this may itself represent a ground for unfair dismissal (see TDG Chemicals Ltd v Benton). If nothing else, if you’re confident a request will be refused then asking for the right may itself give an employee a ground of appeal they would not otherwise have (but you risk having the request granted and then having no questions to ask).

Case References:

R (Bonhoeffer v General Medical Council [2011] EWHC 1585 (Admin)

TDG Chemical Ltd v Benton [2010] UKEAT 0166_10_1009

Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522

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