In practice, however, many employers would not make a distinction as to the reason for postponement (i.e. The meeting must be managed correctly to avoid allegations that the employer failed to handle the disciplinary process fairly or lawfully. If you are implicated in a disciplinary matter, contact us on 0345 772 6100 - we're available 7 days a week. 2. Anonymous witness statements in disciplinary investigations Blog UK Employment Hub. http://www.empirehr.com - In this video Empire HR explains how to handle a disciplinary hearing correctly. Providing the employee with written copies of evidence and witness statements before the hearing. because they may tamper with or destroy evidence or attempt to sway or intimidate witnesses). For example, permit each party 5 min. He should not have been involved in any dispute between yourself and your employer; 1.2 the employer’s representative – usually the human resources representative or a senior … Where a disciplinary investigation results in the decision to proceed to a disciplinary hearing, the employer should provide the employee with copies of any witness statements and other written evidence that will be referred to in the hearing. As always, the facts will need to be closely considered to determine whether postponement – further to prior or last-minute request – is reasonable. Ensuring that the person investigating the disciplinary issue is different from the person making the final decision at the disciplinary hearing. An interesting set of facts emerged in the case of Oberholzer vs. Central University of Technology: Free State (2017)where the employee, a lecturer in law, was arrested by the police. CUT was not willing to wait. In addition, OH may recommend adjustments to the disciplinary process and/or hearing in order to accommodate the employee’s condition. NOTE: It is not a prerequisite that opening statements be delivered. Statement Hearing Of Disciplinary Example Opening. In other words where a matter is important to the Claimant’s case, comment must be provided by the relevant witness. If you decide the allegations need addressing with the employee, send the employee a disciplinary hearing letter. However, the employer should consider whether other evidence will suffice and if there are other options which should be pursued as an alternative (such as the witness giving evidence anonymously (see further below) or the witness being persuaded to attend). water cooler, arrangements should be made to ensure that all rooms reserved for the hearing have an adequate supply of water. Progressing the disciplinary procedure when an employee goes on sick leave. Attendance of witnesses called by the complainant or the charged person is up to that party. A related question is whether the employee’s illness – such as anxiety, depression or stress – could have caused or contributed to the alleged disciplinary offence (such as misconduct)? The DWP’s Health and Work Handbook states that: “In these circumstances it is likely that the effects of an unresolved dispute on the employee’s mental health may be greater if the proceedings are postponed. Disciplinary hearings. An employer should decide which option is appropriate; and that will very much depend on the facts and circumstances. It would normally be appropriate to provide copies of any written evidence with the disciplinary hearing invitation/notification which may include any witness statements. This defensive packet should include copies of all documentary evidence, witness statements, applicable policy, and the inmate’s personal written statement to the hearing body. Ok, so we did the Conducting a Disciplinary Procedure – Back to Basics article back in November with the trickier aspects to follow but we have been exceptionally busy over the past few months so we are only getting an opportunity to add the second instalment now. The meeting that is additionally called a ‘hearing’ should … The employee has the right to know the case against them and to be able to challenge it, so evidence should be anonymised or withheld only where there is a strong reason for doing so. Read your employer's disciplinary policy. Has the witness had a previous disagreement with the accused employee? NOTE: It is not a prerequisite that opening statements be delivered. It is not and should not be considered legal advice. However, it is also important to record anything that may open up a new line of enquiry or help in corroborating other information 1. However, the advantage of giving an opening statement is that it tells the Chairman how the presentation of evidence is structured, and enables him to form an overview of the case. Employers will rightly be wary of proceeding with the meeting in the employee’s absence without a convincing reason to do so. The opening statement is How To Write Chemical Formulas For Salts there to outline the facts that you hope to prove with evidence Here are some examples: Members of the jury the prosecutor explained in her opening statement that her witness Mrs. With this in mind, below are the crucial need-to-knows when carrying out a disciplinary hearing. As part of a fair disciplinary hearing, all evidence against the employee should be presented. Two months ago, the manager asked me about a colleague and she said it was confidential when we verbally discussed it. If you have been asked to go to a disciplinary or dismissal meeting, there are a few things you should do beforehand to make sure you are as well prepared for it as you can be. We will try to fix a date that suits you. The statement of case forms your “script” at the disciplinary hearing, so you need to be comfortable with it. The employee was served with the charges and invited to make written representations. This move can always be reversed should the time come. This allows the employee to prepare his or her own case. For this reason, the transcript from a disciplinary hearing, being testimony given by the witnesses, is often treated as hearsay evidence by the commissioner or arbitrator, who will then require the relevant witness to verify the evidence given during the disciplinary … Your browser does not allow automatic adding of bookmarks. ... statements previously made. 2. The non-statutory guide that accompanies the code states that the employer should give copies of any meeting records to the employee, but states that protecting a witness is an example of a circumstance in which withholding information may be appropriate. A disciplinary hearing can be a make-or-break situation for many an employee. If your adviser has drafted something that puts an inaccurate ‘spin’ on what you’ve told them, make them correct it. During the disciplinary hearing, witness statem… However, employers should not take any action which demonstrates pre-judging the situation or preferring one employee’s version of events over another’s without strong reason for doing so. The importance of an effective opening statement cannot be overstated. Non-binding ACAS guidance states that it is good practice to allow the accused employee’s companion to participate as fully as possible in the disciplinary hearing, including by asking questions of witnesses. Where an employee is persistently unable or unwilling to attend without good cause, the ACAS Code states that the “employer should make a decision on the evidence available” (paragraph 25). It is important to understand, however, that the hearing officer cannot compel a witness to testify. This may not always be sufficient to ensure a fair dismissal. His attorney attended the disciplinary hearing … In any event, witnesses should be advised not to discuss the investigation with other employees or third parties and reminded of their dut… You must prepare for the hearing like a professional. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently”, Therefore the ACAS Code allows for both options. When the employee is advised of the need for suspension they should be advised (orally and in writing) not to come to work; not to carry out any work; not to contact colleagues (other than HR) or clients – as well as the intended duration of the suspension. The Disciplinary meeting, or hearing, forms an important stage in a fair and lawful Disciplinary procedure. Any witness statements made in connection with the disciplinary hearing will be shared with you, as will the identity of those making those statements. It was not known when the employee would be released from custody. When inviting an employee to a disciplinary hearing it is essential that they are furnished with all of the evidence in advance of a disciplinary hearing, including witness statements. The investigator should explore why the individual wants to remain anonymous. Witnesses can give important evidence that might help decide the outcome of a disciplinary or grievance case. This witness statement has been provided by Mr. Henry Smith. The investigator should question whether the witness has any reason to lie? Very often, it emanates from the fact that trade unions, or the respondent’s legal adviser, will demand to be given copies of any witness statements or other evidence in the possession of the employer, prior to the disciplinary hearing. to exonerate self)? It is not uncommon for an employee to go on sick leave after a disciplinary process has been commenced. Assessing the credibility of all evidence. The guidance says an investigator should only consider anonymising witness statements … An employee may be unfit for work but fit to engage with the management process. Any medical opinion on whether the employee is fit to attend the meeting. Letter: Invitation to appeal hearing How to guide: How to chair an appeal hearing Letter: Outcome of appeal hearing Letter: To chair of formal hearing inviting to appeal Memo: To all attending hearing (excluding witnesses) providing paperwork in relation to appeal: Tools & Templates for Investigators and Witnesses: Guidance: Guidance for Witnesses The need for the privacy of all individuals concerned (the accused employee and the witnesses) must be emphasised by the investigator and HR. Therefore in a witness statement, you must always give a truthful and accurate account of the event. The employer should: explain the employee’s alleged misconduct or performance issue. The seriousness of the disciplinary issue under consideration. When the employee wants a witness present: who takes the statement; who asks them to attend; should they be compelled; who can ask questions of the witness; witness anonymity; which evidence is to be preferred. If the accusation against the employee does not stem from or involve their manager then their manager could be the investigator but regard should be had for the potentially on-going working relationship between the two. Failure to attend and last minute adjournments. In addition, they should be allowed to “raise points about” information given by a witness. Case law tells us that an accusation or charge against an employee should be “precisely framed”. This page helps you prepare for a disciplinary or dismissal meeting. (One exception may be when the disciplinary process is about to be concluded at the point the grievance is raised. The employer should not automatically refuse to disclose a document if a third party, for example a colleague who has given a witness statement, does not consent to it being released. This will enable the witness’ answers to be tested during the process. Manager? However, the advantage of giving an opening statement is that it tells the Chairman how the presentation of evidence is structured, and enables him to form an overview of the case. This report would have to be undertaken with the employee’s consent – which may have been provided within the employee’s employment contract or may need to be separately requested; if the former, then it is still advisable to seek explicit consent for the current report. A witness statement is a document recording the evidence of a person, which is signed by that person to confirm that the contents of the statement are true. If you were in membership at the time of the incident that led to the hearing, we can help you prepare your case. Employees have the right under the General Data Protection Regulation (2016/679 EU) to request access to information about them that is held on file, whether manually or on computer. The non-statutory ACAS Guide sets out a number of considerations for employers to weigh up, prior to taking this deciding on a postponement or adjournment, including: The statutory rules with regard to re-arranging hearings where a companion is unable to attend are a little different (i.e. Often this order is given at a directions hearing. External witnesses. If the employee still says they cannot attend or if they go on extended sick leave, the employer should see if it would help to make other arrangements. That should be considered before the original investigator is selected. In the case of a GP, the Access to Medical Reports Act 1988 will need to be complied with. For example, an employee who has raised a grievance and is not satisfied with the outcome may request copies of the written evidence on which the decision was made, including statements obtained from witnesses; or an employee about whom a grievance has been made may request evidence relating to the complaint. where there are several witness statements from different employees, preparing a summary of the information contained in the statements. If your employer is intending or considering taking any form of disciplinary action against you, they are required to follow the ACAS Code of Practice. During the disciplinary hearing, witness statements will supply you with evidence. At paragraph 45 Basson J expressly stated that “it is possible to proceed with a disciplinary hearing on the basis of written statements in circumstances where the … Consideration should be given as to whether fellow employees interviewed as witnesses need to be told the name of the employee being investigated. Employers should bear in mind that employees can obtain further documentation t… These statements formed part of the bundle before the Labour Court, with the names of the deponents blacked out. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing. It would normally be appropriate to provide copies of any written evidence with the disciplinary hearing invitation/notification which may include any witness statements. How similar cases in the past have been dealt with. If the grievance and disciplinary are related it is advisable to deal with them concurrently. However, covert recordings of private discussions – for example of the employer’s disciplinary panel during the employee’s absence from the room – will not be admissible on the grounds of public policy other than in exceptional circumstances (such as where discrimination is seemingly uncovered). If, during a disciplinary investigation, it transpires that there were external witnesses, then as part of a good investigation you should endeavour to obtain witness statements from them. The employee should be advised of the duration of their suspension as soon as possible after their absence commences and they should be updated should it be necessary to extend the suspension. writing a statement. This is another question that arises time and time again. The Acas code of practice on disciplinary and grievance procedures, which is taken into account in relevant tribunal proceedings, states that it would normally be appropriate to provide the employee with copies of any written evidence with the notification of the disciplinary hearing. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication. We have looked at 6 areas namely confidentiality, surveillance, witness anonymity, failure to attend, stress-related illness … Understandably, you may feel you do not want to attend, however, it is generally implied in your contract of employment that you should comply with internal investigations or hearings. What evidence needs to be provided; are statements required? Well in advance of the disciplinary meeting, you must be given copies of all relevant policies. When inviting an employee to a disciplinary hearing it is essential that they are furnished with all of the evidence in advance of a disciplinary hearing, including witness statements. The focus should be on ensuring the employee knows the case against them to the fullest extent reasonable and that they can prepare for the disciplinary hearing. Very often, it emanates from the fact that trade unions, or the respondent’s legal adviser, will demand to be given copies of any witness statements or other evidence in the possession of the employer, prior to the disciplinary hearing. Before commencing any disciplinary investigation the employer should always bear in mind the importance of keeping the investigation confidential. Should the employee refuse consent, it may be a misconduct matter (although unlikely to justify dismissal). Yes, an employer can anonymise witness statements obtained during a grievance or disciplinary procedure. If an employee fails to attend the first meeting arranged, it is normally good practice for the employer to rearrange the meeting to an alternative date in order to give the employee a further chance to attend (page 19 of the non-statutory ACAS guide). A… Please press Ctrl/Command + D to add a bookmark manually. It is important to remember that a witness statement is a legal document and therefore can be used as evidence during these hearings and subsequent hearings. LNRS Data Services Limited trading as XpertHR is an Appointed Representative of Markel International Insurance Company Limited trading as Markel Legal Expenses Insurance which is authorised and regulated by the Financial Conduct Authority. The appellant's counsel was advised by the appeals co-ordinator that if he intended to use the witness statements at the hearing then he was required to disclose them and counsel for the appellant disclosed them on this basis. Copyright © 2021 LexisNexis Risk Solutions Group, Access the Coronavirus Job Retention Scheme, Shared parental leave and shared parental pay, Employment tribunals and dispute resolution, Acas code of practice on disciplinary and grievance procedures. A witness statement is a written account of events that have taken place. to protect other employees’ data) or disclosure in civil or criminal proceedings (e.g. The focus should be on ensuring the employee knows the case against them to the fullest extent reasonable and that they can prepare for the disciplinary hearing. You should be told the names of the Hearing Manager and the Notetaker. The employer (CUT) intended to proceed with disciplinary action on several unrelated charges. The accused inmate should prepare a defensive packet prior to any hearings taking place. Neutral? The employee who raises a grievance when faced with disciplinary proceedings. We use cookies to offer you the best experience possible. The doctor or nurse will have to assess whether attendance is likely to cause serious deterioration in the employee’s mental or physical health, for example if there is a significant risk of suicide.”. View our privacy policy, cookie policy and supported browsers. Example witness statement for an employment tribunal hearing Witnesses give evidence on matters within their own experience/ about which they can reasonably comment. This might involve: Ultimately, the employer should take a reasoned decision about whether or not it would be reasonable in the circumstances to disclose a witness statement or other document. In most cases, you only have to prepare a witness statement when we order you to do it. The ACAS Code states that: “Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Example Witness Statement. Suspension can also be advisable where relationships between colleagues have clearly broken down. Does the witness have a bad/good reputation within the company? — This publication is intended for general summary guidance. The reason for this is that parties have a right to cross examine witnesses based on the content of their statements. O’Farrill v New Manage Ltd t/a … An employer cannot ‘charge’ for one reason and later dismiss for another. Employers should bear in mind that employees can obtain further documentation through a Data Subject Access Request (the response to which can be redacted to the extent necessary e.g. Employees often seek to postpone disciplinary hearings as a result of illness or lack of availability (of themselves or their specific companion) or because they need more time to consider the case against them and/or gather evidence. Reply. Where a disciplinary investigation results in the decision to proceed to a disciplinary hearing, the employer should provide the employee with copies of any witness statements and other written evidence that will be referred to in the hearing. In particular, this is likely to be true if a Tribunal considers that a hearing with the employee present may have resulted in a different decision. Firstly, it must be remembered that the disciplinary hearing is an internal matter - the disciplinary hearing is not a court … This can include those working in HR. We look at how employers should prepare for a disciplinary meeting. The hearing can proceed without opening statements. If a witness is liable to be intimidated by the accused employee, the investigator can ask the latter to leave for part of the hearing. The hearing is the chance for both the employer and the employee to state their case. This will involve balancing the witness's right to privacy against the employee's right to know what information is held about them, and its source. Effectively Utilizing Witness Statements. It is important the witness reviews their statement to make sure they are happy it is true. As always, if there is a conflict of evidence: One person could be believed over the other. If an employer does not have reasonable grounds to suspend the employee, they will risk being in breach of the implied term of trust and confidence and bringing about a constructive wrongful and/or unfair dismissal. The hearing can proceed without opening statements. Registered Company Number: 07020110 | VAT Number: 978 9417 44 | Data Protection Registration Number: Z2273050. unavailability of the employee or the companion) and would simply agree an alternative time with the employee unless it becomes apparent that the employee is simply stalling. The following letter should be sent only to witnesses that the committee is requesting attend the hearing. Both parties have to agree to the authenticity of a document. It needs to elucidate what your colleagues both saw, and heard. Its purpose is to provide support to either party during an investigation/ disciplinary hearing. You should always go through normal disciplinary procedure before conducting a hearing, including carrying out an investigation to find all relevant information and interview any witnesses. Employers have an obligation to undertake a fair disciplinary procedure, which will include attempting to obtain reliable, corroborated … If the employee was suspended from work as part of the disciplinary process: management/HR should consider moving the employee on to company sick pay (or SSP, as relevant) e.g. The employer should consider taking steps to anonymise the document before disclosing it. At the hearing, each witness is asked to ‘swear’ or to ‘affirm’ that their statement is true and correct. http://www.empirehr.com - In this video Empire HR explains how to handle a disciplinary hearing correctly. Use of the service is subject to our terms and conditions. Eventually, with longer term sickness absence (or a time-critical matter) an employer will have to question whether they hold a disciplinary hearing in the employee’s absence. They are not intended either as a substitute for professional advice or judgment or to provide legal or other advice with respect to particular circumstances. With an employee on sickness absence during a disciplinary process, the employer then has to weigh up: dealing with the disciplinary expeditiously (for example where other employees own interests are affected) and dealing with the accused employee who may genuinely not be well enough to attend a hearing or participate in the process. If they are unrelated then it is nearly always advisable to pause the disciplinary proceedings and deal with the grievance before resuming the disciplinary. Corroboration of witness evidence is always desirable. In this situation the employee should be advised to follow the company’s normal sickness reporting procedure (i.e. To continue browsing, please confirm you're happy with our Cookie Policy. From my first call, and throughout each subsequent meeting and contact, Kervin and Barnes (Lucy Truscott) were highly professional and responsive. A witness statement is a document that sets out the evidence a witness, including you, will give at a hearing. These statements formed part of the bundle before the Labour Court, with the names of the deponents blacked out. The Claimant’s witness statement must include reference to all relevant matters upon which the Claimant relies. A disciplinary hearing is a meeting between you and an employee, held when you wish to discuss an allegation of gross misconduct with an employee (or any other behaviour that merits disciplinary action). An opening statement by a party is often called a “road map” of the case. copies of policies, standard operating procedures, witness statements etc. If it is possible to anonymise the witness evidence without causing unfairness to the accused employee, then the witness interview should be conducted as standard and the statement later anonymised (i.e. If there is no one available who fits the bill (or their involvement would cause a major delay e.g. In instances of alleged serious or gross misconduct, the employer may wish to suspend the employee while the matter is being investigated. The witness statement is an employer’s way of setting out their stall and will discuss the reasons why, and the evidence … An employer is in a better position if they can rely on a contractual right to suspend. The employee’s disciplinary record (including current warnings), general work record, work experience, position and length of service. Case law has demonstrated that when an employee secretly records a disciplinary hearing or internal meeting with their employer, the recording of any part/s of the meeting where the employee was present may be admissible before an Employment Tribunal. Only in an exceptional case where there is clear risk of harm would the university vary this position. XpertHR is part of the LexisNexis® Risk Solutions Group portfolio of brands. Where the accused employee is very senior, the original investigator may need to be at that person’s own level to allow for someone more senior to deal with any appeal. The ACAS Code of Practice provides a minimum standard of conduct and process requirements to be met such as: 1. The medical report may be obtained from either the employee’s own GP or an independent doctor such as an occupational health (OH) doctor. The investigation must be confidential so each witness should not discuss it with anyone else. it could result in an uplift if the employee brings a claim that is successful). If you are currently carrying out disciplinary action with an employee and have questions about whether you should allow an employee to anonymise a witness statement you can contact the Employment team on 023 8071 7717 or email employment@warnergoodman.co.uk. to provide support to either party during an investigation/ disciplinary hearing. Who should investigate and/or chair? This is exactly why the employer should only suspend where necessary. It would normally be appropriate to provide copies of any written evidence with the disciplinary hearing invitation/notification which may include any witness statements.
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