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The Employment Appeal Tribunal (EAT) has overturned a finding of 'harassment by hearsay' on the basis that the Employment Tribunal (ET) had inappropriately ignored some evidence whilst according other 'hearsay' evidence more weight.
Whilst it is evident that the ET made a number of errors in reaching its decision, this is a useful reminder of the importance of putting first hand evidence before a tribunal.
In Habinteg Housing Association Ltd v Holleron, Ms Holleron was employed as a community assistant for Habinteg Housing Association (Habinteg). Following a complaint about her relationship with a vulnerable female tenant, Ms Holleron was suspended pending investigation. Ms Holleron subsequently brought a number of claims against Habinteg.
In the ET, Ms Holleron was successful in her claim for harassment related to sexual orientation. It was alleged that during an investigation interview with the tenant, Habinteg's investigating officer had implied that Ms Holleron was a lesbian and trying to take advantage of the tenant sexually. Neither the investigating officer nor the tenant attended the hearing to give evidence.
The ET held that an inference of unlawful discrimination could be drawn from the facts. In reaching its decision, the ET refused to take account of the witness statement provided by the investigating officer but it did accept Ms Holleron's account of how the tenant perceived what the officer had said to her.
In overturning the decision, the EAT found that the tribunal should not have entirely disregarded the investigating officer's witness statement because she was not in attendance. However, it confirmed the principle that a party's written evidence will generally be accorded much less weight than sworn testimony. Furthermore, the EAT underlined the importance of parties providing reasons why witnesses cannot be in attendance where this is unavoidably the case.
This case draws attention to the value and weight of hearsay evidence put down before an ET. Both parties should give significant thought to using witness evidence if that witness is unable to attend the hearing and be aware that this may have a detrimental impact on the consideration of that evidence.
Parties should identify any issues with respect to witness attendance at an early stage and ensure, where the absence of a witness is unavoidable, that they take steps to mitigate the effect of this including providing reasons for the non-attendance to the tribunal.