Hearsay

‘Hearsay’ is a technical term. It’s one of those things that tribunals sometimes assume everyone understands, when in fact few non-lawyers do.

It’s not very difficult, though.

All hearsay evidence is evidence a witness gives about what someone else said. But evidence isn’t hearsay just because it’s evidence about what someone said. It’s only hearsay if the point of giving it is not to persuade the tribunal that someone else said something, but to persuade them that what someone else said was true. So you can run a simple test on any piece of evidence about what someone said: ‘Does the witness want the tribunal to believe that what was said was true?’ If the answer is yes, it’s hearsay; otherwise not.

Examples

Suppose you tell the tribunal that Alison told you before your disciplinary hearing that she’d already been asked to draft an advert for your job. Why are you telling them this? Because you want them to accept that Alison had been asked to draft an advert for your job before the decision had officially been made to dismiss you. But the best person to tell them about that is Alison, not you. Your evidence is hearsay.

Now suppose you tell the tribunal that your manager said you were a useless wanker. This time you’re not trying to persuade them that what your manager said was true – you’re not giving this as evidence that you are a useless wanker. You’re just trying to persuade them that your manager insulted you. So although your evidence is about what you heard someone say, it’s not hearsay. (Of course, if you tell the tribunal that Alison told you that your manager told her that you were a useless wanker, that is hearsay.)

Why does it matter?

It doesn’t much, actually. Employment tribunals can hear whatever evidence they please, and there are no technical rules about hearsay, though they will probably place less reliance on hearsay than on direct evidence. But it’s a term you may hear, so it’s as well to understand what’s being talked about if you do.