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Topic: Disciplinary, capability and dismissal

witness confidentiality agreement and undertaking
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Witness confidentiality agreement and undertaking

Witness confidentiality agreement and undertaking

When you conduct disciplinary proceedings, or an investigation, you'll probably require the assistance of other employees. But you don't want them shooting their mouth off about what's going on or discussing it with other individuals involved. Not only could this jeopardise the proceedings, it's a breach of confidentiality.  So insist they sign our witness confidentiality agreement and undertaking. It helps to protect your position.

Keeping quiet

In the vast majority of disciplinary investigations, you won't be able to get to the bottom of an allegation without the assistance of other employees. Of course, at this stage, the employee who is potentially facing disciplinary action hasn't done anything wrong, i.e. the allegations against them are currently unproven. Therefore, they are entitled to full confidentiality. But even if you move on to the next stage, i.e. a disciplinary hearing, or impose a disciplinary sanction, the same rule still applies. What's more, you won't want anyone involved in the proceedings blabbing to their colleagues, or any outside third parties. This is a private matter and should be treated as such. Not only must you ensure that all witnesses involved in the disciplinary proceedings keep matters confidential, you'll want them to:

  •       fully co-operate with the investigation and any subsequent disciplinary hearing or appeal
  •       answer all questions put to them honestly and openly
  •       reveal all the information they know (whether you ask about it or not)
  •       co-operate with any third party you instruct to deal with the matter on your behalf, e.g. a solicitor or HR consultant
  •       refrain from contacting any witnesses involved in the proceedings with a view to discussing the matter
  •       attend the tribunal and/or other court as a witness on your behalf (if necessary).


Action for breaches 

Our Witness Confidentiality Agreement and Undertaking makes your expectations in these circumstances crystal clear. You should ask the employee to sign and return it to you before they provide any assistance.

The document also states that if the agreement and undertaking is breached in any way, you have the right to treat the employee's actions as gross misconduct, i.e. it will result in disciplinary proceedings being commenced against them which may result in their dismissal.

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