In determining a wrongful dismissal complaint, where the Claimant denies the alleged conduct, is a tribunal entitled to conclude that it could make no positive finding as to the conduct without having heard from witnesses who claimed to have seen the alleged conduct?
No, held the EAT in Hovis Limited v Louton.
The Claimant was dismissed for gross misconduct after being seen smoking whilst driving his work van. The tribunal found the dismissal fair having heard from the decision maker as to the evidence taken into account. However, the tribunal upheld the wrongful dismissal case having concluded that, having heard evidence from the Claimant, and in the absence of evidence in person from the witnesses as to the smoking, notwithstanding that the tribunal had their hearsay statements and other evidence to support the Respondent's case, the tribunal could not make a finding of fact the Claimant was smoking.
The EAT held that the tribunal should have sought to evaluate the hearsay evidence of the statements that had been gathered from the witnesses and considered as part of the disciplinary process. There was no rule that oral evidence given and tested at trial, must always 'trump' opposing documentary or hearsay evidence.
Thanks to Tim Kenward of 7 Harrington Street Chambers for preparing this case summary.