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The mystery witness

Sometimes employers will dismiss on the strength of information from someone they are not prepared to identify – let’s call him or her X.

What can you do about that? Can you make them call X to give evidence?

The main answer is that you probably don’t need to. Remember that what the ET is mainly interested in, in a misconduct dismissal case, is not whether you actually did what you were accused of – but whether your employer genuinely believed, on reasonable grounds and after an adequate investigation, that you did what you were accused of. So they don’t need to know how convincing they think X’s evidence is. They need to know things like what questions X was asked, what X’s answers were, whether you had a chance to challenge what X said, and so on. That doesn’t necessarily mean that you had to be given the opportunity to question X yourself, or have him or her present at the disciplinary hearing: but you do need to have known in detail what had been said against you, and normally also who said it, so that you can make any points you might want to make in your defence. If X is in fact someone who has a grudge against you, you’d want to be able to tell your employer about that at the disciplinary hearing. If you weren’t able to because you didn’t know who X was, that may make the dismissal unfair.

You can make those points perfectly well without having X present at the hearing. In fact, you might be able to make them better: if X turns up, and turns out to be someone who has no reason to have a grudge against you and whose evidence is convincing, your employer will be able to say ‘Go on then. Make the points you’d have made at the disciplinary hearing now.’ If you’ve nothing much to say, your employer can then argue that even if it wasn’t fair not telling you who X was, they’ve now demonstrated that it wouldn’t actually have made any difference if they had told you.

Of course, if you’re convinced that X doesn’t exist at all, you might want to press your employer to call them, in order to demonstrate that. You could write to them and say ‘I don’t think X exists, and that’s what I’ll be telling the ET at the hearing. So if you say he or she does exist, you’d better call them to give evidence.’ And then if there’s still no X at the hearing, you can show the tribunal your letter, and ask the tribunal to conclude that X doesn’t exist.

You could also use the tribunal’s power to direct a party to give written answers to questions to find out who X is: ask the tribunal to order them to tell you X’s name and address. See ¶¶3.26-3.28 of ET Claims for how to do this.

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