You have the right to know what is being said against you at a disciplinary and a real chance to answer it.
“You cannot properly defend yourself against a case you have not been allowed to see, so a fair disciplinary must let you know the substance of the evidence against you.”
You cannot properly defend yourself against a case you have not been allowed to see, so a fair disciplinary must let you know the substance of the evidence against you.
- Ask, in writing, for the witness statements and documents the employer relies on.
- Ask for them in good time so you can prepare a proper response.
- If you are asked to answer evidence you have not seen, say so and request it before you respond.
The situation
The case arose from a fight at work, where the central question was who had provoked it. The employee was disciplined, but he did not hear what the other person involved had said, was not given the written statements of that person or of the other witnesses, and had no chance to ask them questions. The real issue, who or what had started the fight, turned on exactly the accounts he had never seen. He was found to have been treated unfairly and the employer appealed.
What the tribunal found
The Employment Appeal Tribunal held that natural justiceNatural justice is the basic idea that a decision affecting you should be made fairly, by someone unbiased, and only after you've had a proper chance to give your side. In a disciplinary or grievance ... does not fix one rigid procedure for every case. Cross-examination is not always needed, and what is fair is a question of degree. But one thing is required in every case: a person must know, in one way or another, sufficiently what is being said against them, because without that they cannot properly put their own case. The information can reach you in writing, by hearing what the other side says, or by having the relevant points put to you orally in enough detail. Here the employee had none of that on the point that mattered, so the process fell short.
Bentley Engineering Co Ltd v Mistry | [1979] ICR 47; [1978] IRLR 436 | Employment Appeal Tribunal | 1978