As tribunals are not bound by any rule of law relating to the admissibility of evidence, the Employment Appeal Tribunal (EAT) has held in Hovis Ltd v Louton that hearsay or documentary evidence must be admissible. It further held that tribunals do not have to hear in person testimony from witnesses before coming to a conclusion, depending on the reliability of the hearsay evidence.
Hovis operated a smoking policy which stated that any driver caught smoking in their van would be disciplined. It made clear that breaching the policy was so serious that they could expect to face dismissal.
In late December 2019, the company’s logistics manager, Mr Sittre, passed Mr Louton’s van on a motorway. His wife noticed that the driver was smoking at the wheel and after manoeuvring his vehicle to allow him to take a look, Mr Sittre was able to confirm that Mr Louton was indeed smoking.
He then reported the matter to another manager, Mr Jarvis, prompting him to start an investigation. This included carrying out a static reconstruction from which he concluded that it was possible to see a driver seated in the lorry’s cab from the Sittres’ car. Although no evidence of smoking was found in the cab, Mr Jarvis concluded that there was a case to answer.
In due course, Mr Louton was invited to attend a disciplinary hearing which concluded that he had violated the company’s smoking policy and he was summarily dismissed. His appeal against dismissal was unsuccessful. Mr Louton brought tribunal claims of unfair and wrongful dismissal.
Given the evidence submitted by the company, the tribunal judge dismissed the unfair dismissal complaint.
However, the judge upheld the complaint of wrongful dismissal on the basis that she was unable to decide, as a fact, whether Mr Louton had been smoking in his cab. This was because she had only heard from Mr Louton but not from Mr and Mrs Sittre. As she had only heard from one of the three potential witnesses who could provide a first-hand account of what they saw on the day in question, she concluded that she was unable to evaluate their credibility against that of Mr Louton.
The company appealed on the basis that there was ample documentary and hearsay evidence before the judge to enable her to weigh up the competing accounts from the evidence of Mr and Mrs Sittre in comparison with that of Mr Louton.
Upholding the appeal, the EAT found that the tribunal judge’s conclusion was problematic for two reasons.
Firstly, she seemed to think that she was prevented from assessing any of Mr Louton’s evidence because she had not heard from either Mr or Mrs Sittre. Secondly, without hearing from the Sittres in person, she also seemed to think that she was unable to evaluate their credibility.
These conclusions were, however, wrong in law as tribunals are not bound by any rule of law relating to the admissibility of evidence in proceedings being heard before a court. It follows, therefore, that hearsay or documentary evidence (or any other kind of evidence) must be admissible.
Finally, it held that if the evidence is sufficiently relevant to what the tribunal has to decide, then it should be considered. That said, the fact that it is hearsay would impact on the tribunal’s assessment of its reliability and what weight it should attach to it.