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Document updated/added on 05.03.2021

Topic: Disciplinary, capability and dismissal

Request to witness to attend disciplinary hearing
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Request to witness to attend disciplinary hearing

Request to witness to attend disciplinary hearing

In some cases, it might be reasonable to invite a witness to attend a disciplinary hearing to give their evidence and answer questions in person. You can use our letter to do this.

Acas Code of Practice

The Acas Code of Practice on Disciplinary and Grievance Procedures says that, at a disciplinary hearing, the accused employee should be allowed to set out their case and answer any allegations that have been made, and they should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses, and to raise points about any information provided by witnesses. In addition, where either party intends to call witnesses to give evidence in person at the hearing, they should give advance notice to the other that they intend to do this.

Practical implications

Raising points about information provided by witnesses doesn’t necessarily mean having the witness present in person for them to be cross-examined by the accused employee, if that wouldn’t be reasonable. For example, if a witness doesn’t attend the hearing, it may be reasonable for the accused employee to be permitted to submit a list of written questions to be put to them about their witness statement before any decision is made about whether a disciplinary penalty is appropriate.  In most cases, witnesses don’t need to attend a disciplinary hearing in person – their witness statement will be sufficient, along with the opportunity for the accused employee to raise points and questions about it. However, where the accused employee disputes the witness’ version of events, and the substance of the case turns on that witness evidence, it may be appropriate to call the witness to give their evidence and to be questioned on it. 

Request to attend

Our Request to Witness to Attend Disciplinary Hearing letter is for use in those few cases where a witness is to be called. It assumes the witness is another employee, as it’s unlikely you’ll be asking external witnesses to attend internal hearings, but you can amend it if an external witness is to be requested to attend. Our letter explains to the witness that they’ll be required to state their evidence and then to answer any questions that may be put to them by the accused employee, their chosen companion or the chair of the hearing. It also makes clear that the witness won’t be present for the full duration of the hearing, only when they’re giving their evidence. They shouldn’t be allowed to sit in on the rest of the hearing as it’s a confidential matter.

Moral support

An employee may be nervous about giving evidence against another employee, so do provide them with reassurance and moral support both beforehand and on the day of the hearing itself. Our letter recognises this and so emphasises the importance of their evidence to the case. You mustn’t pressurise them into giving evidence though if they’re genuinely intimidated. If the witness fails to attend the hearing, find out the reason why. If you’re not satisfied with their reason, exercise caution in treating their evidence as determinative on its own unless there’s corroborative evidence.

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