Is there a right to cross-examine witnesses?

The Acas Code envisages either side calling witnesses to attend the disciplinary hearing whenever this is “appropriate”. A lot will depend on the nature of the allegations, the importance of the particular witness’s evidence and the seriousness of the implications of the outcome for the employee. The more serious the consequences, the higher the standard of fairness expected.

In TDG Chemicals v Benton (UKEAT/0166/10), an employee sacked for 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.

Where allegations are very serious and could affect an employee’s ability to pursue their future career, it may be possible to argue that the employee should be allowed to cross-examine witnesses because of the right to a fair trial under Article 6 of the European Convention on Human Rights. However, recent decisions, in particular Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641, suggest that the human right to a fair trial is only ever likely apply to an internal disciplinary hearing in very narrow circumstances, where a decision of an internal disciplinary tribunal is likely to lead to the member being banned from continuing in their chosen profession.

Occasionally (but not often), the procedure gives a contractual right to both legal representation and cross-examination.