Thu 29 Nov 2018

Withholding evidence from disciplinary panel not unfair

Withholding evidence from disciplinary panel not unfair

When disciplining an employee the majority of employers are aware of the need to carry out a fair and reasonable investigation, and to provide the employee with any relevant evidence, including witness statements, prior to a disciplinary hearing taking place.  In Hargreaves v Manchester Grammar a decision of the EAT has clarified that an employer is not though required to provide all of the evidence obtained during an investigation to an employee.  

Mr Hargreaves was a teacher with an unblemished disciplinary record until it was alleged that he had grabbed a pupil, pushed him against a wall and put his fingers to the pupil's throat.  Following a disciplinary procedure Mr Hargreaves was dismissed.  Given the nature of the allegation this dismissal had potentially career ending consequences.  Mr Hargreaves claim for unfair dismissal failed.  He appealed arguing that the investigation carried out by the employer was inadequate, particularly given the seriousness of the allegation against him.  In particular, he argued that the Tribunal had erred in its approach to the employer's failure to disclose both to Mr Hargreaves and to the disciplinary panel specific evidence from three witnesses - two pupils and one other member of administrative staff.  These witnesses had all said they had seen nothing untoward, which Mr Hargreaves argued was highly relevant.  However, the ET had concluded that the location of the witnesses meant they would not have been expected to have seen anything untoward. 

The EAT dismissed the appeal being satisfied that the Tribunal had directed itself correctly with regard to the higher standard of investigation and process that might be required given the potentially career changing nature of the allegation against Mr Hargreaves.  It concluded that the ET was entitled to withhold statements of witnesses who would not have had a direct view of the incident and who said they saw nothing.  

While on this occasion it was within the band of reasonable responses for the employer to decide the witness statements could be withheld, such a decision needs to be properly considered and will be closely scrutinised by a Tribunal.  If it seems that relevant evidence has been omitted (bearing in mind that in some cases evidence from witnesses that they saw nothing could support a defence that nothing untoward happened) then it is likely that the subsequent dismissal will be found to be unfair.

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