Cross-examining witnesses

A. There is no absolute right to cross-examine witnesses. Whether you should get to do this is likely to depend on several factors.

First, do they have something important to say that might make a difference to the outcome? Second, is there a right to cross-examine witnesses in your disciplinary procedure? Third, even if there isn’t a right, in some circumstances it is unreasonable to refuse a request to cross-examine.

The more serious the potential consequences of an allegation, the higher the standard of investigation and procedural fairness the employer must meet (Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721). 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.

The grave implications of dismissal for making a racist comment meant the standard of investigation had to be particularly high, and cross-examination should have been allowed.

Even though you may have the right to cross-examine witnesses, the key is to be well-prepared and to make sure you are as confident as you can be as to what they are likely to say and, most importantly, whether it is likely to be helpful to the member.