Scenario – an employee raises a grievance and claims people from an external organisation heard comments that relate to their grievance. The employee requests the employer interviews the external witnesses and provides them with notes of the conversation.
If the employer receives a grievance, they will usually take advice from their employment law and HR provider who will advise to review the grievance in the first instance and then appoint an investigating officer. The job of the investigating officer is to investigate the claim made by the employee and interview relevant parties to determine if the grievance is founded or not.
Interviewing external witnesses should be decided on a case-by-case basis but will usually depend on the seriousness of the grievance and the action the employer decides to take.
The ACAS Code of Practice on Disciplinary and Grievance Procedures investigations guide recommends, including identifying possible sources of evidence and deciding whether all potential witnesses to an incident need to be interviewed. The employer should also refer to its own grievance policy on the matter.
There is also non-statutory guidance from ACAS (Investigations for discipline and grievance: step by step guide); step 4 deals with witnesses and taking witness statements. Here it states the following:
The person investigating might decide a witness can give a statement without having a meeting, if the witness:
- is not an employee, for example a customer or client
- only needs to give very simple information
- is ill and cannot come to an investigation meeting
The person investigating should ask the witness to write:
- answers to specific questions, where necessary
- their name and, where applicable, job title
- the date, place and time of any relevant issues
- what they saw, heard or know
- the reason why they were able to see, hear or know about the issues
- the date and time of writing their statement
- their signature
The witness should have reasonable time to give the statement.
This guidance does indicate an external witness may be called to provide evidence. This may cause an issue as when an employee submits a grievance, this is an internal matter and internal processes have no power to demand an external party co-operate with the investigation. It is understandable an external party does not want to become involved as a witness when they are not employed by the employer. Furthermore, from a practical point of view, if an external party agrees to be a witness, the employer would need to consider confidentiality, the need to redact parts of witness statements or the investigation report in order to deal with data protection.
To summarise, there is no legal duty on an employer to interview external witnesses as part of an internal grievance investigation. The decision to reach out to external parties should be made on a case-by-case basis and will no doubt come with its challenges as outlined above. If an external witness is at the heart of a complaint the employer may decide it is right to ask the external witness for a statement but there will be no guarantees the external party will co-operate. This may be very frustrating for the employee who has made the complaint, the employer also. The investigating officer will need to show in its report the steps it took to gather information and the obstacles faced if necessary.