Q&As

Can a staff counsellor employed by the respondent employer be called as a witness in employment tribunal proceedings, even if the counsellor has concerns about breaching their duty of confidentiality towards the claimant employee?

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Published on LexisPSL on 28/09/2018

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • Can a staff counsellor employed by the respondent employer be called as a witness in employment tribunal proceedings, even if the counsellor has concerns about breaching their duty of confidentiality towards the claimant employee?

Can a staff counsellor employed by the respondent employer be called as a witness in employment tribunal proceedings, even if the counsellor has concerns about breaching their duty of confidentiality towards the claimant employee?

LexisNexis® Employment are not aware of any case law on this specific issue.

It may, however, be useful to consider:

  1. whether the counsellor will attend voluntarily, or whether a witness order would be required

  2. the nature of the evidence the counsellor is expected to give

  3. the nature of the counsellor’s duty of confidentiality

  4. exploring with the claimant whether he or she would be prepared to waive any duty of confidentiality owed by the counsellor

  5. whether the evidence sought could be provided by an alternative witness, eg a jointly-instructed expert witness

The following Practice Notes may be of

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