David Gibson discusses the recent case of Hovis Limited v Louton concerning the weight of evidence in cases of wrongful dismissal.
Hovis Limited v Louton  was a case where an employee bought claims for both unfair dismissal and wrongful dismissal.
What was it about?
Mr Louton worked for Hovis as a delivery lorry driver. A senior manager and his wife allegedly witnessed Mr Louton driving his company van and having a cigarette at the same time.
An internal disciplinary investigation was commenced and it was found that he had been smoking whilst driving and this was deemed to be a serious breach of Hovis’s procedures. He was subsequently dismissed without notice. He brought a claim and gave evidence that he had not been smoking. Neither the senior manager or his wife gave evidence to the tribunal.
The Employment Tribunal’s view
The ET found that Mr Louton was not unfairly dismissed but had been wrongfully dismissed – but how?
The tests for unfair dismissal and wrongful dismissal are different but it highlights some interesting lessons.
Hovis had not called anyone who was an actual witness to the events. Mr Louton had given evidence and had been cross examined. However, the ET did not hear from either the senior manager or his wife who were the only other individuals who would be able to provide a first-hand account of the incident.
On this basis, the ET Judge felt that she could not test the evidence of the witnesses to the matter, and could not find as a matter of fact that Mr Louton was smoking as relied on by Hovis.
What did the Employment Appeal Tribunal think?
In a nutshell, they considered the issue of ‘hearsay’ evidence and decided that:
“What this means in practice is that hearsay or documentary evidence, or other types of evidence of whatever nature, are not, as such, inadmissible, and if such evidence is sufficiently relevant to what the tribunal has to decide, then it should be considered. But the assessment of the evidence, and what weight to attach to it, is, of course, a matter for the tribunal”.
The matter was sent back to an ET to re-consider the matter.
What are the lessons for employers?
The decision makes it clear that an ET Judge can consider hearsay evidence and give the evidence any appropriate weight in the context of all the evidence it is taking into consideration. The lesson is therefore to ensure that if you are seeking to rely on such evidence, it would be wise to have such witnesses available at any hearing so their accounts can be considered and scrutinised. Some witnesses may be reticent to do so (even at the investigation stage) and therefore it is important that employers carefully consider the strength of the evidence to support any findings or decisions.