Been asked to give a witness statement... Calling HR professionals!

[Spaceunicorn6789]

And I don't know what to do.

So my background, currently studying my CIPD qualification but been working in HR for 4ish years and an advisory position officially for 7 weeks but unofficially for about a year.

I left my last job 4 months ago as I became aware that they were discriminating against someone for their disability (stopped giving him work, zero hours contract immediately after he declared his disability).

Now, at the time of this I was well aware that they were adament they didn't want him to be employed by the company anymore and was in fact asked to dismiss him and a lot of horrible conversations about his disability. So I left as I felt that I couldn't work for a company that 1. Treated people that way and 2. Wanted me to dismiss him or defend their decisions.

I have now been contacted by the individual and asked to provide a witness statement and I don't know what to do.

On the one hand, he deserves to win and I want to help him as the way they treated him was absolutely disgusting.

On the other, I don't really want to go up against my old employers (I didn't leave on good terms).

Any advice great fully recieved. I feel like on a personal level the right thing to do is help but professionally to keep out of it.

Well if you don’t stand up for him when will employers stop doing this? You don’t work there any more - where the conflict of interest?

That's what I'm not sure about... Can I use information that I was privy too as part of my role, obviously a huge part of which is confidential against them? Is that a breach of the CIPD code of conduct or confidentiality clause that was in my contract?

Have you been asked to provide a witness statement for an employment tribunal?

You could see if the individual could get a witness summons. That way you would be required by the Employment Tribunal to attend and it would be less of a choice if that makes sense?

Clearly your evidence would still be highly supportive of the Claimant so you would still be on his "side" and your former employer would know that.

It may be that if you provide a witness statement that is very supportive of the Claimant the Employer will be minded to settle rather than have it all played out in a public forum.

Yes but by the individual not ordered by a court.

If ordered by the court then obviously I would have to provide a truthful account of what happened but at this point it is voluntary.

I am worried providing a statement will be a breach of 2.5 of the CIPD Code of Conduct (attached)

2.2 & 2.4 seem to override 2.5 in my view.
Will it effect your current employment if you go ahead?

Do the CIPD have an ethics type helpline you can call?

In theory it shouldn't... But you never know who is scratching whose (wrong whose?!?) back in this industry in this location...

I did call the CIPD helpline and the lady didn't know... So glad I pay my membership fees

She did say she would leave it for her colleague though to call me back tomorrow in case she knows.

Ask your ex-colleague to apply for a witness order. Easiest for everyone. Then you "have to" go and, whatever your professional code says, you have to answer honestly when questioned under oath. I have seen an HR person questioned like this and they were neutral and factual and therefore a very credible witness. Everyone knows that you have to answer what you're asked so it shouldn't be held against you.

OP, this is a tricky one. I’m both an employment lawyer and a CIPD member so looking at it from separate angles!

Have a look at 3.3 - you must comply with prevailing laws and not encourage, assist or collude with others who may be engaged in unlawful conduct, taking action as appropriate - I would suggest that this is your best argument if you wish to give evidence voluntarily, although it’s a grey area as to whether the “prevailing laws” of the court would apply if you’re disclosing information to the claimant rather than in the clear course of legal proceedings (ie, to a judge!)

Regarding 2.5, the disclosure of sensitive or commercial information is overridden by the requirement to disclose as part of legal proceedings. However, to be on the safe side, you should be witness ordered. It is then a very clear cut - failing to disclose would potentially become a contempt of court.

Just tell the claimant that you may have relevant evidence but that you have professional obligations that you feel could conflict and that you will attend to give evidence if witness ordered to do so. That way you aren’t refusing and it may plant the seed that he needs to request a witness order. You also aren’t indicating to the claimant whether the evidence is beneficial or detrimental to him, only that the evidence is potentially relevant (which is one of the legal tests for whether a witness order will be granted).

I think I remember you posting about this before. I’m so pleased you left the employer and wouldn’t carry out their dirty work for them. Well done.

It sounds like you’re having a bit of a moral argument with yourself about it though. Personally I wouldn’t be agonising over breaking a code of conduct if I had been asked to support someone who has been subjected to such a blatant unlawful act of discrimination. I don’t say this to judge you, but because in my mind that’s the decision to be made. Whatever you decide is right for you, there will be a way round it.

If a witness order is the way to go to make you feel comfortable given the professional standards aspect, I’d tell him outright that’s what you’ll need rather than hinting.

I can’t believe the CIPD code of conduct is intended to bind its members in such a way as to circumvent the law in situations like this.

Thank you all for your advice.

I have told him that I will provide a factual statement if he or his solicitor applies for a summons from the court - that mirrors the advice from the CIPD as well to be the best course of action for all parties.

I wish I could have done it voluntarily, because the poor guy deserves a win - I honestly naively would have never believed his story has I not witnessed it all unfold. But unfortunately morals do not pay the bills and you need to be very careful!

See what happens next I suppose!

Good luck op

You should say you are willing but only directly to the court/tribunal by request from them. That way you can avoid conflict of interest