Hearsay Evidence Must be Considered
The claimant in the employment tribunal worked for the respondent as a delivery lorry driver. A manager, Mr S, reported that, when driving his car on the motorway, accompanied by his wife, both of them had seen the claimant driving his van on the same stretch of motorway and smoking at the wheel.
Following an internal disciplinary investigation and process the claimant was found to have been smoking whilst driving, which was a serious breach of the respondent’s procedures, and dismissed.
The tribunal found that the claimant was not unfairly dismissed. He did not appeal or cross-appeal from that decision. The tribunal upheld the claimant’s claim of wrongful dismissal. The respondent appealed from that decision.
At the hearing in the employment tribunal the claimant gave evidence in person and denied that he had been smoking. Neither Mr S nor Mrs S gave evidence to the tribunal. The tribunal concluded that it therefore could not find as a fact that the claimant had been smoking. The tribunal erred by concluding that, in the absence of either Mr or Mrs S giving evidence in person, it was precluded from making such a finding; and by failing to evaluate the hearsay evidence of the statements that had been gathered from the Ss in the internal investigation.
The appeal was allowed.
Auerbach HHJ
[2021] UKEAT 2020-000973
Baiolii
England and Wales
Employment
Updated: 27 November 2021; Ref: scu.670055
