355: Should the Employment Tribunal consider hearsay evidence?

The case below shows the importance of employers conducting disciplinary processes thinking about how they will prove the evidence they are relying on in a Tribunal hearing.

Employment Tribunals are not bound by the rules on admissibility of evidence that apply to court proceedings. Tribunals must consider all evidence that is sufficiently relevant to the case, including hearsay evidence, and then decide what weight they will attach to it. This is illustrated in the recent case of Hovis Ltd v Louton.

Mr Louton, a delivery driver for Hovis, was summarily dismissed for gross misconduct after he was seen smoking in his work lorry in breach of company rules. He denied smoking, and an investigation found no evidence that he had been smoking in the vehicle. However, the evidence at his disciplinary hearing had included written statements from two eyewitnesses, a Hovis manager and his wife, who alleged that they had seen him smoking when they overtook him on the motorway. Mr Louton subsequently brought claims of unfair and wrongful dismissal.

The Employment Tribunal held that Mr Louton’s dismissal was fair, having concluded that Hovis had acted within the range of reasonable responses. However, the Tribunal upheld his wrongful dismissal claim on the basis that it was unable to make a finding of fact that he had been smoking since it had not heard directly from the two eyewitnesses, and was therefore unable to evaluate their credibility or attach any weight to their statements.

Hovis appealed on the basis that the Tribunal should not have discounted the eyewitness statements and hearsay evidence. The EAT has now upheld this appeal, confirming that the Tribunal should have considered and weighed up the statements, taking account of the fact that they were hearsay and not tested under oath. There is no rule that oral testimony must take priority over opposing hearsay or documentary evidence that the Tribunal finds more reliable or compelling. This means that even though the employer’s witnesses had not given evidence under oath, the Tribunal could still have ruled that, on a balance of probabilities, Mr Louton had been smoking. His claim was sent back to be reheard by a different Tribunal.

Despite the admissibility of hearsay evidence being confirmed in this case, it is usually advisable for witnesses to appear in person so that Tribunals can evaluate their credibility more easily. However, once all the available evidence has been considered, it is then up to the Tribunal to decide how much weight it will place on that evidence.