Employee being called to witness?

confusedcowen

Just a little scenario I've been thinking about for a while after reading a few cases..


So, imagine the situation. An employee finds himself in a position where his co-worker is sleeping on the job. Thus putting the employee in a dangerous situation.
The employee complains about said action and provides photographic evidence to his employer about the action.
The employer fires the sleeping employee based on the action and the employee, obviously disgruntled, decides to sue to the employer for unfair dismissal.


Now here's the question, can the former employer demand the original employee that provided the photographic evidence to stand up and be a witness in court?
I understand they would have no choice if it were a criminal case whereby the former employees were being accused of larcenery or similar but can it be done in a case where the employee simply provided a photo and nothing else?

Obviously in both cases the employee would rather not be called to witness so what can the employer do about it? or rather what can the employee do about it?



edit: btw, hello boards

Overheal

Personally I doubt it. In such a scenario there wouldn't seem like much of a need. The photo is there. Unless the defendant wants to try and make the case that it's been altered they have no reason to require that the photographer of the image come forth, as the image should speak for itself.

But I reckon it depends on the plaintiff too, since the original witness could strengthen the case. Again though, its a matter of necessity and if its not necessary to defend the employers right to dismiss the employee than it wouldn't likely need to happen.

Milk & Honey

Unless the employee who was dismissed accepts in writing before the case that he was asleep and the photo is genuine, the the employee who took the photo would have to give evidence.
If he is still employed by the same employer the witness could face disciplinary action. Providing a photo which causes the employer to lose an EAT case would not be a career enhancing move. If there was a safety issue it would be the duty of the witness employee to report it so there can be no getting out of giving evidence.

seamus

Milk & Honey wrote: »

If he is still employed by the same employer the witness could face disciplinary action. Providing a photo which causes the employer to lose an EAT case would not be a career enhancing move.

That's not really correct. The employer would have no grounds on which to discipline the witness. The witness provided the evidence to the employer, who then made the decision as to the photo's worthiness as evidence for dismissal. The witness was acting entirely within his responsibility by highlighting the matter to his employer.

If an EAT deemed the photo as insufficient evidence, then that's the employer's fault for using it as evidence. The witness did not dismiss the employee nor make any decision as to the authenticity of the photo, and so cannot be subject to any disciplinary proceedings in relation to the EAT.

Milk & Honey

There was an issue regarding safety. The employee was under a duty under the Health & Safety Act to report it. If he refuses to give evidence now he is effectively saying that he did not report something he was obliged to do. He can be summoned to the EAT and asked if any safety related issue had occurred and what he did about it. Either he did something or he didn't. He can't have it both ways.

confusedcowen

Good points there. If the employee was no longer employed by the same person, would the former employer have any course of action then?


@Milk & Honey: Is taking the photograph and providing that to their supervisor not doing enough?

Can the employer legally have the employeed summoned to witness or could the employee simply just refuse to be witness for the case?
After the photo was handed over, does ther book of responsibility not end right there?


I don't see how refusing to give evidence is effectively saying they did not report something, as they clearly did. The only difference is now that they do not want to be a witness in the case.

Milk & Honey

The employee can be summoned and can be asked under oath if anything happened. If they provided a photo they will have to say so. If they reported something they will have to confirm it.

seamus

Milk & Honey wrote: »

There was an issue regarding safety. The employee was under a duty under the Health & Safety Act to report it. If he refuses to give evidence now he is effectively saying that he did not report something he was obliged to do. He can be summoned to the EAT and asked if any safety related issue had occurred and what he did about it. Either he did something or he didn't. He can't have it both ways.

Ah right, I read your first post wrong.

I thought you were saying that the witness could be disciplined if he gave evidence and the employer lost the EAT. I think you were actually saying that he could be disciplined if he refused to testify and the employer lost the EAT. I think that's a fair possibility.