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Cross-examination
[ch 7: page 44]The Acas Code envisages either side calling witnesses to attend the disciplinary hearing whenever “appropriate”, but there is no general right to cross-examine witnesses in a disciplinary hearing, even where allegations are potentially career threatening (see, for example, Yeung v Capstone Care Limited UKEAT/0161/13/DA).
Even so, it is sometimes unreasonable to refuse a request for cross-examination at an internal disciplinary. Relevant factors include the type of allegation and the relevance of the witness’s evidence. The more serious the consequences, the higher the standard of fairness expected (Salford Royal NHS Foundation Hospital Trust v Roldan [2010] IRLR 721). For example:
An employee sacked for being seen allegedly “mouthing” a racist comment at a workmate during an onsite collision was unfairly dismissed when his rep was denied the right to cross-examine the other worker who witnessed the incident. The grave implications of a dismissal for making a racist comment meant the standard of investigation had to be particularly high, and cross-examination should have been allowed.
TDG Chemicals v Benton (UKEAT/0166/10)
Occasionally (but rarely) the disciplinary procedure provides a contractual right to both legal representation and cross-examination.