What is Hearsay Evidence and Should it Be Used in Workplace Investigations?

Hearsay evidence is largely inadmissible in the court room, but it can have a role to play in workplace investigations.

This article looks at what hearsay is, the legal exceptions to the hearsay rule and the extent to which hearsay can be useful when investigating cases of misconduct in the workplace.

What is hearsay?

In a court room situation, hearsay is a statement made by a third party that is offered as proof of a fact by a witness giving evidence in court.

An example of this would be if Julie witnesses Mark assaulting Karen. Julie tells Eric what she saw. Eric then testifies in court that Julie told him she saw Mark assaulting Karen. This is hearsay evidence and it is largely inadmissible.

It is considered inadmissible by most courts (the hearsay rule) for reasons such as;

• Statements made outside of a court room don’t carry the same weight as statements made in court where the witness is under oath (and subject to penalties for lying).
• Third party statements made outside of court can’t be tested for truthfulness and accuracy by cross-examination of the witness.
• There is always a danger of inaccuracy and exaggeration when repetition of information is involved.
• Allowing hearsay evidence in court can add to the time and cost of litigation.

Exceptions to the hearsay rule

There are a number of exceptions to the hearsay rule, where hearsay evidence may be admissible in some courts. These exceptions include;

• When the evidence is relevant for a non-hearsay purpose (i.e. relating to something other than proving an assertion).
• Where the person who made the out-of-court statement is deemed ‘unavailable’ to give evidence, due to the person being dead, being not competent to testify or being prevented by law from testifying,
• If the hearsay statement was a dying declaration by the declarant.
• If the testifying witness heard the hearsay statement directly from an eyewitness to the crime.
• When the hearsay evidence is an admission of guilt by the third party.
• If the hearsay evidence is detrimental to the declarant.

Hearsay evidence in the workplace

While hearsay evidence is largely inadmissible in most courts of law, it will often get more consideration from those who are presiding over matters of workplace misconduct.

Such matters are usually dealt with by managers, HR departments or fair work mediators and the burden of proof is often less stringent in such settings than it is in a court of law.

Common workplace complaints include allegations of discrimination (based on age, sex, race, religion or gender identity), bullying, sexual harassment and unfair dismissal,

The only circumstances where such allegations would be considered criminal behaviour (and therefore matters for the courts) would be if a complaint such as workplace harassment also involved offences such as stalking or physical or sexual assault.

Because allegations of misconduct are usually topics for the water cooler, arbiters of workplace complaints will usually give hearsay evidence a friendlier hearing than the courts, particularly if it reinforces other evidence that has already been gathered.

Other useful forms of evidence typocally collected in a workplace investigation can include anecdotal evidence, character evidence, tendency evidence (where past behaviour confirms current actions), circumstantial evidence, testimonial evidence and if the investigator is really lucky, direct evidence such as CCTV footage.

Pros and cons of hearsay evidence

While hearsay evidence can be useful, there are those who would argue that it should only be used with extreme caution. That’s because, in the absence of any direct evidence, it could easily be used against employers or employees for purely selfish or malicious reasons.

When considered on its own, it can also lead to sloppy, incompetent investigations where a miscarriage of justice is committed on the basis of little or no real evidence.

A good workplace investigator should do their utmost to find hard evidence to substantiate the hearsay and ideally put the investigation on hold until such evidence can be found.

Rather than acting impulsively when hearsay evidence is presented to them, they should;

• Consider the reliability of the person making the statement
• Ask others if they are aware of the allegations and whether they know anything more about them
• Continue watching discreetly for any further signs of infringements.

When using hearsay evidence in a workplace investigation, it is important for the investigator to analyse its value in terms of its relevance and reliability, Not just to guard against a miscarriage of justice, but also to protect the investigator’s own reputation.

How so? Because the matter may end up before a fair work tribunal or civil court seeking damages. Many ultimately do and a prior investigation that failed to follow basic rules of evidence will reflect badly on those who conducted it.

A good rule of thumb for a workplace investigation is that it should be thorough, timely, fair and confidential. And any hearsay evidence that is uncovered should be used to corroborate other forms of evidence, rather than presented as sole proof of innocence or guilt.