When conducting a workplace investigation, it is important that supporting evidence is collected in order to ensure that any decisions can be backed up, particularly in the event of legal proceedings.
We examine the merits of recording evidence in a signed statement versus an affidavit.
The nature of a signed statement is fairly self-explanatory: this is a document where somebody records information they wish to present.
Unlike an affidavit, it does not necessarily need to be witnessed. If a witness is required, any adult can sign.
Statements are much less rigid documents than affidavits. As such, there are no requirements around the content or the format and the rules of evidence do not apply.
In contrast, an affidavit is a legally recognised document which is considered to be 'sworn' evidence. If the deponent (the person providing the affidavit) does not wish to swear on a Bible or other religious text, an affidavit can be 'affirmed' in a secular fashion.
The signature on an affidavit must be witnessed, and that witness must be authorised to take affidavits. This is usually a qualified Justice of the Peace, or a solicitor or barrister.
Affidavits should only contain statements of fact rather than opinion, and information which the deponent is able to confirm of their own knowledge. For example, a deponent cannot say "I know that Billy swore at Jessica because Cynthia told me".
Generally, a court or tribunal will make an order or direction as to whether a written statement is sufficient or affidavit evidence is required.
A written statement is usually enough in less serious circumstances. Written statements provide a helpful guide for a court or tribunal to determine what has occurred. But they are informative rather than being considered reliable evidence. This is because there are effectively no penalties for dishonesty in a written statement. If the statement is signed, however, you can challenge the credibility of the witness who gives evidence inconsistent with the contents of their signed statement.
In contrast, an affidavit is a written version of verbal evidence. This means that providing false evidence in an affidavit is to all intent and purposes lying under oath, which could result in perjury charges being laid.
Writing affidavits can be a complicated process, and there is a risk that a court will refuse to allow some or all of the evidence contained in an incorrectly drafted one. As noted, the consequences of giving false evidence in an affidavit are potentially very serious, and it is essential that anybody who has been asked to provide affidavit evidence is fully aware of the ramifications.
While there are resources that can help in drafting affidavits, professional assistance may be required, particularly if the investigation could potentially result in litigation or police intervention.
At WISE, our experienced team can assist you in conducting an unbiased and rigorous workplace investigation, including advising on whether witness statements will be sufficient or affidavit evidence will likely be required.
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