Witnesses can provide vital information for a company to make a fair and suitable decision in a disciplinary matter. They can be even more imperative if there is no physical evidence of the employee’s wrong doing. Here are answers to some of the common questions we are asked about handling witnesses.
Should witness evidence be provided to the employee before the hearing?
Written accounts from the witnesses being called by the employer in the investigation meetings should have been provided to the employee in advance of the disciplinary meeting to allow them to consider the evidence, prepare their defence adequately, and think of any additional questions they would like to ask the witnesses.
Who can be a witness?
Usually witnesses are internal colleagues of the accused employee who have relevant information for the disciplinary matter. In more unusual or complex cases, witnesses can also be a third party for example, a customer or supplier.
How do I invite the witness to a disciplinary meeting?
The witness will need to be notified in advance, through a request letter, asking for their attendance so they can make arrangements to attend. If the employee is calling witnesses, they would normally contact those witnesses themselves.
Does the witness have to attend the disciplinary hearing?
The employee subject to the disciplinary proceedings cannot require witnesses they would like to call to attend. The employer can give a management instruction to a witness to attend, assuming the witness is an employee, and depending on the circumstances, it may be unreasonable for them to refuse.
A witness statement can be provided in the absence of the witness being present. The employee can put questions in writing to the witness that can then been answered and submitted in writing for the meeting.
The investigating manager may be present at the meeting to confirm their evidence but their information from the investigations will have also been stored in written form for the chair to access and discuss.
How should I deal with reluctant witnesses?
Sometimes employees are reluctant to act as witnesses, perhaps not wanting to get involved, or seen as being a snitch or troublemaker. Sometimes they want anonymity guaranteed, which can be problematic and often impossible, especially in a small organisation.
In these situations you need to balance your duty of care towards all employees including those who perhaps feel vulnerable and threatened, with your responsibilities to provide the accused employee with sufficient information about the witness statement and gain enough evidence to support any decision you will make.
Reassure reluctant employee witnesses that you will take any attempt to bully them or threaten them very seriously, and perhaps offer the opportunity to provide witness statements for consideration rather than being cross-examined in the hearing if that is appropriate for the allegation in question.
Process of an upset or disruptive witness
It’s always helpful to explain the role of the witness when they are called into the disciplinary hearing and what are acceptable behaviours of both the witness and the employee. If the interaction between the witness and the employee becomes aggressive it would be appropriate to adjourn the meeting and make a decision whether to carry on with the witness present or whether the employee should submit written questions that the witness can then respond to and the chair can read the answers.
Similarly, if the witness is visibly upset whilst giving their statement, it would make better sense to pose questions to him/her and then submit the answers in written form to the employee in the meeting.
In smaller organisations, it can be harder to obtain witness statements due to the close knit culture and not wanting to upset others but if handled correctly, it can provide vital evidence to carry out a successful disciplinary for both the business and the employee.
A professional HR consultant can advise you on all disciplinary matters, therefore do get in touch for support in this area.