DISCIPLINARY PROCEEDINGS - 20.04.2018

Disciplinary proceedings: how to interview a witness

Starting the process

When an employee is subject to disciplinary proceedings, it’s possible that you will need to interview one or more witnesses. Whilst the tribunal won’t expect you to be an expert in this process, it will be looking for a fair and reasonable procedure overall. So how can you ensure that your style of questioning is legally compliant and that you get the most out of the witness and the interview process?

Talk in private

All interviews that are connected to disciplinary proceedings should take place in private; never discuss these matters in a public setting or adopt an informal approach as it will breach the privacy of the employee subject to the proceedings. At the start of the meeting inform the witness that they are being interviewed in connection with disciplinary proceedings. Always interview witnesses separately, never in a group. This will avoid allegations of collusion.

Explaining why

Rather than fire off questions at the witness, explain why you need to interview them. For example, you could say “It’s been alleged that Joe Bloggs has used inappropriate language in the workplace and we need to interview all witnesses. What do you know about this?”

Tip. Having made this statement, say nothing - let the witness give their version of events freely at this stage even if the information isn’t chronological. Only interrupt the employee if what they are saying is clearly irrelevant.

Step by step

Whilst they are speaking, take brief notes - don’t worry about getting everything down, you can revisit matters in due course. Once the witness has finished giving their version of events, take them through what they have said step by step.

Tip 1. Where you need more information, perhaps because you are confused by their version of events, ask them for clarification but do so with non-leading questions, i.e. “What did Joe say?” as opposed to “Did Joe use inappropriate language? ”.

Tip 2. It’s possible that there will be inconsistencies, either in what the witness has said, or how it compares to other witness statements and/or the accused’s version of events. You can draw attention to inconsistencies and ask further questions but you don’t have to prove the witness is right or wrong.

Tip 3. At the end of the interview, summarise what the witness has said by saying: “So, what I have understood is... is that right?”.

Tip 4. Assuming it is, you have two choices: (1)  write up the witness’ version of events and ask them to sign it; or (2) ask them to write up their own statement ASAP. The problem with (1) is that you could be accused of putting words into their mouth. Therefore, unless the witness struggles with English, e.g. due to dyslexia or it’s not their first language, the safer option is (2) (see The next step ).

For a free witness statement record, visit http://tipsandadvice-personnel.co.uk/download (PS 20.09.05).