Managing hearsay evidence: a guide for HR professionals and investigators

It is common for an investigator to be presented with a variety of different evidence types, ranging from documents and electronic records to individuals’ accounts of different events. These may relate to grievances, allegations of serious misconduct, safeguarding concerns, or other complaints. Often, that evidence will include what is known in the legal system as “hearsay”. Hearsay evidence must be carefully assessed by the investigator before relying on it and deciding how much weight it should be given. This article provides guidance to HR professionals and investigators in handling that task.

What is hearsay evidence?

Hearsay evidence is written or oral evidence which does not come “direct from the source”. It might be a second or third-hand account, or evidence which is in writing. It is not first-hand evidence.

For example, if an interviewee or a witness recounts something that someone else has told them, that will be hearsay evidence. It will also be hearsay evidence if a witness describes something they saw in a document or another resource. Even a written statement from a witness who did directly experience an event may be hearsay if that individual is unwilling to give live evidence.

How do employment tribunals treat hearsay evidence?

Employment tribunals are not bound by the strict rules of evidence which are followed in civil or criminal courts. A tribunal can consider hearsay evidence, and usually without any particular process being followed[1]. That does not mean that an employment tribunal will give hearsay evidence the same weight as direct evidence; usually they will not. That is because hearsay evidence can be unreliable: it cannot be tested by the tribunal because the tribunal is unable to ask questions of the person who is giving it. That means motivations, biases, inconsistencies or different possibilities cannot be explored. Nor can a tribunal gain a realistic impression of the kind of witness someone is if they do not come to court.

There are some instances in which reliance on hearsay evidence will be more disadvantageous and closely scrutinised. If an employer in an unfair dismissal case provides only a hearsay statement from a still employed dismissing officer, an employment tribunal is likely to closely scrutinise the reasons for their non-attendance. However, in an unfair dismissal case an employment tribunal is less likely to scrutinise non-attendance of an investigating officer to the same degree, even where they have access to a written report from an investigator. That is because usually the focus of a tribunal will be on the dismissing officer’s reasonable belief, the view they took of the procedure the employer followed, and so on.

What factors do employment tribunals consider?

There are a range of factors an employment tribunal might consider when determining what weight to give hearsay evidence. For example:

• Who is the individual giving the hearsay evidence? If that individual is, for example, the person who is said to have done wrong by the claimant and is central to the employer’s or the claimant’s case, non-attendance at a tribunal will be more significant.
• Why have they not attended tribunal? If there is no good reason for non-attendance, that will trouble a tribunal.
• What relationship does the individual giving hearsay evidence have with either of the parties involved in the dispute? If there is a close relationship between any of the parties, there might be a reason for an individual to give more supportive evidence.
• If a party is giving hearsay evidence live (eg they are recounting something someone else told them), how did they come into possession of that evidence? It might be that there is a rumour going around, or evidence has been passed down a chain of people. Generally, the further evidence is from its source, the less reliable it becomes.
• When did the individual giving hearsay evidence come into possession of the evidence? If a manager attends tribunal and says they saw their direct report immediately following an incidence of alleged harassment, that that direct report complained to them of it, and is then able to give an account of how their report appeared to be responding to it, that will likely have more weight than someone who heard that same information a few months later from someone close to the direct report.
• Is the hearsay evidence corroborated by other types of evidence? There might be CCTV evidence which can corroborate someone’s account of where or when a fight is said to have occurred between two individuals. There may be documentary evidence which corroborates the kind of tone someone is said to have used with a junior employee in a meeting.
• How inherently probable is an account? If someone has given an inherently highly improbable account of a situation which they refuse to support by giving live evidence, that will raise eyebrows.

Often employment tribunals will set out what the hearsay evidence relied upon is, and why they believe that they are able to rely on that evidence. They may well refer to corroborative evidence. That said, it is not necessary for a tribunal to go through a checklist of factors to set out why they consider it appropriate to discard or rely upon hearsay evidence.

What does that mean for how investigations should treat hearsay evidence?

As in an employment tribunal, an investigator may collate and refer to hearsay evidence. Hearsay evidence may tend to corroborate or disprove allegations.

Because hearsay evidence can be less reliable than direct evidence (as it is a step removed from the source, for example), an investigator still needs to carefully consider the circumstances surrounding that evidence and the case at hand, and weigh the reliability of the hearsay evidence. It may be that there is documentary or other evidence which corroborates the hearsay evidence, which will assist an investigator in this task. The bullet points set out above apply equally in the context of an investigation, and an investigator will want to be live to them.

In some cases, it may be that there is only hearsay evidence of an allegation. That does not mean an investigator is not able to conclude that, on the balance of probabilities, the allegation is proved. If a patient in a hospital makes an allegation of sexual harassment against a clinician, an investigator might not be able to speak to the patient for a range of good reasons. That said, the investigator should be able to speak to the individual or individuals to whom the patient made the complaint. There may be other evidence which is available, such as a police report, a hospital report, the employee’s disciplinary record, or CCTV.

A common example of the use of hearsay evidence is where an individual wishes to give a written statement to an investigator because of stress, anxiety, or ill-health. An investigator may, in the appropriate case, still encourage that individual to speak to the investigation directly, bearing in mind the real impacts on the individual. That will be more important where the individual is, for example, the original complainant or the accused. Nevertheless, if the individual cannot give evidence in any other way, and particularly where the person is the accused or the complainant, it may be appropriate that the individual be allowed to give evidence in writing. The investigator may wish to ask follow-up questions, and invite any corroborative evidence from the individual directly, to appropriately weigh the hearsay account.

It can be difficult, in situations where there is a lot of hearsay evidence, to remain open to an accused individual’s explanation of events. Investigators should be aware that they do not have to uphold allegations, even where there is a significant amount of hearsay evidence supporting them. In some cases, it may be more appropriate to give weight to an accused individual’s account, because that individual is able to explain or give a more accurate account of events which they actually experienced, or because their account is supported by documentation or is more internally consistent. Investigators should also be alive to scenarios where rumours have spread throughout a team or organisation, which can lead to an unfair level of feeling against an accused individual.

Where the only evidence of a specific allegation is hearsay, an investigator should be alive as to why that is the position. Is there any real risk of a reprisal? If there is, might the complainant fear one? If there is not, why else might the complainant not wish to give direct evidence? Is this a workplace in which rumours appear to spread quickly? Can either the complainant or the individual about whom a complaint has been made give an explanation as to why that hearsay evidence might exist and/or be trustworthy/not believable?

Anonymous hearsay evidence can be particularly problematic if an investigator chooses to rely upon it. Although an investigator may consider that anonymous hearsay evidence has some value, the fact that the individual is not willing to put their name to it will usually mean it must be given less weight and should be treated with caution. It may well be unreliable. If the investigator does rely upon it, this can raise questions as to fairness. Consider the same factors an employment tribunal would (set out above). These are all questions which a complainant or the subject of an investigation may wish to ask of the anonymous evidence in order to challenge it. Anonymity can make it difficult, if not impossible, to do so. That may make reliance on anonymous hearsay evidence highly unfair. An investigator should be very cautious when using anonymous accounts to uphold their findings.  

Key takeaways for managing hearsay evidence in the workplace

There is no hard-and-fast rule on hearsay evidence in investigations. Such evidence can be used to support or disprove allegations. There are some circumstances where hearsay will be necessary and reasonably reliable, and where it may be appropriately relied upon or considered. There will be other cases where the pitfalls of using such evidence (such as where the hearsay is anonymous, or there is no good reason why an individual could not give evidence in person) should put an investigator on alert. Investigators should think proactively about how to value the hearsay evidence within the context of a full investigation.

[1] Note that in Scottish employment tribunals, live witness evidence in chief is still the norm, whereas tribunals in England and Wales rely on witness statements and cross-examination on those statements. That means that in Scotland it is more likely that a tribunal will exclude from consideration a witness statement where the individual refuses to come to Court to give evidence.

Many thanks to Sophie David a barrister currently on secondment for their help in writing this article.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, September 2024