The evidence of witnesses is often crucial to an investigation, particularly in cases of misconduct. A common problem faced by employers is the situation where the witness who will only provide information if they are given an assurance of anonymity. We look below at whether it is outside the range of reasonable responses to dismiss someone in reliance on evidence of an anonymous witness.
When a witness requests anonymity the reason for the request and the motives of the informant need to be explored. If a tribunal is asked to rule on whether a subsequent dismissal was fair, it must consider whether the employer’s investigation was within the band of reasonableness. In doing so it should investigate why there was a need for anonymity and carry out a balancing act between that perceived need and the employee’s need to know details of the case against him.
For disciplinary proceedings to be fair, it is important that the employee knows the case they have to answer. They need to know what allegations have been made against them so they can respond accordingly. The ACAS investigations guide states that an investigator should try to avoid anonymising witness statements whenever possible. It reasons that the employee under investigation is likely to be disadvantaged when evidence is anonymised as they will not be able to effectively challenge the evidence against them. It therefore, takes the stance that an investigator should only agree to anonymise a witness statement in exceptional circumstances where a witness has a genuine fear of reprisals.
These issues were considered in the recent judgement handed down by the EAT on 3 July 2020 in the case of Tai Tarian v Christie.
The Respondent was a housing association, who employed the Claimant as a carpenter. The Claimant was dismissed after a tenant alleged that the Claimant had made homophobic comments to her. The tenant was interviewed by two managers but requested anonymity and was not interviewed by the decision-making managers. The Employment Tribunal concluded that the dismissal was unfair as it was outside the range of reasonable responses for the Respondent to rely on an anonymous account.
The EAT held that the Employment Tribunal had misapplied the guidelines set out in the earlier case of Linfood Cash and Carry v Thomson 1989 which emphasised the need to balance a fair hearing with the protection of witnesses and informants. These include the need for information given by witnesses to be put in writing, and for statements to include the date, time, place of observations and incidents, clarity and accuracy, any circumstantial evidence, and whether the witness has suffered at the hands of the accused.
Further, the EAT considered that the Employment Tribunal had applied a substitution mindset in concluding that it had been outside of the band of reasonable responses for an employer to rely on the evidence of an anonymous witness. In assessing the witness’ credibility, there were no logical or substantial grounds for concluding that she had refused to provide evidence to the decision-takers. In fact, she had not been asked to give further evidence until the appeal stage when she had declined due to her personal circumstances at the time. The employer’s appeal was therefore successful.
Most Employment Tribunal cases revolve around process and procedure. The Tai Tarian case reiterates the need for employers to proceed with care when relying on evidence from anonymous sources. Employers seeking to rely on anonymous evidence must ensure that they can clearly demonstrate why they believe this evidence to be genuine. In turn, this may require even greater enquiry than usual including follow up discussions with the accuser and meticulous note-taking to avoid the risk of a subsequent finding of procedural unfairness and unfair dismissal.
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