Member Article

An employee or witness who is fearful of giving evidence as part of a disciplinary process can cause difficulties for an employer. We look at the issues you should consider when dealing with such an individual. Can anonymity be guaranteed? Where an employee is accused of misconduct, your first step will be to investigate the matter and gather accurate evidence as part of a fair disciplinary process. However, there are occasions where the employee who has brought the complaint or a witness who is able to provide evidence to support the disciplinary process is reluctant to assist and will only do so if their anonymity is 'guaranteed'.

There are a variety of reasons why someone may request anonymity:

they may have been subject to a form of harassment and genuinely be fearful of violence or other repercussions;

they may not want to be seen as a 'snitch';

they may have already been threatened or placed under pressure by the alleged perpetrator.

You should always establish the reason for any reluctance as well as consider the possibility that the employee or witness may have reason to fabricate, or otherwise embellish, the evidence they give.

Given the nature of the request, and the process to which it relates, assurances about preserving complete anonymity should never be made. In any event, in a small workplace it may be fairly easy for an accused employee to work out who has given a statement against them.

In order to assess whether to provide anonymised statements, you will need to carefully balance your duty towards protecting the witnesses and ensuring that the accused has a fair disciplinary process. In accordance with the ACAS Code of Practice on disciplinary and grievance procedures the accused must be provided with sufficient information so that they know the case against them and are able to prepare an adequate defence. The employer's investigations must also be within the 'band of reasonable responses'. You should therefore ask whether the disciplinary case can be properly put and responded to if the identity of the witnesses is unknown to the alleged perpetrator. If not, then statements should not be anonymised.

A further issue to be considered is whether you will be required to disclose witness statements as part of any subsequent Employment Tribunal process. A dismissed and disgruntled employee is very likely to seek full disclosure of witness statements and notes of meetings which are likely to identify the witnesses. Indeed, the expectation is that all witness statements obtained during the disciplinary process will be disclosed in their entirety.

However, full disclosure may not be required where the Tribunal is satisfied there are legitimate reasons for protecting anonymity and a Tribunal will scrutinise an employer's decision to protect the anonymity of a witness. In the case of Asda Stores Ltd v Thompson the EAT held that employers will not usually be obliged to disclose witness statements in their entirety where these statements have been given on the basis of confidentiality and anonymity. One option is for the employer to disclose witness statements which have been redacted so as to conceal the identity of their authors. It should be noted however, that only in very exceptional circumstances may the entire document be excluded from disclosure.

You should always be mindful that where a witness statement is not fully disclosed there may be a strong argument that the case has not properly been put to the accused employee thereby violating the principles of natural justice. This in itself is also a question for the Employment Tribunal when assessing whether the employee has been fairly dismissed.

Cross examination

An ancillary issue is where a witness' identity is known but they are reluctant to be cross examined at a Tribunal hearing. The recent case of Duffy v George the Court of Appeal provided guidance on how Tribunals should deal with such scenarios. In this case an employee was too frightened to attend a hearing. The Court of Appeal held that the Tribunal should have held a preliminary hearing to assess how the witness could have given their evidence, or alternatively, how much weight should be given to the witness' evidence where they don't attend. In such cases, Tribunals can have recourse to any of the methods used by criminal courts, including relying on the witness' written evidence only or utilising technology such as video links. The Court of Appeal confirmed that in this case (which concerned sexual harassment) the Claimant who acted in person should not be permitted to cross examine the witness; rather they were provided with a representation order which enabled an advocate to put the case on their behalf.

Practical steps to consider

Ascertain the exact reasons why the witness requires anonymity;

Don't give a guarantee of anonymity but assure the witness that you will do everything you can to protect their identity if they are concerned;

Redact certain parts of witness statements before sharing the statement(s) with others to ensure that anonymity is preserved as best as you can;

Seek to corroborate the reluctant witness' evidence, whether by another witness' account of the situation or the disciplinary manager providing his or her own statement to acknowledge their satisfaction of the weight to be attached to the anonymous witness statement and the reason why an anonymous statement is being relied upon in the first place.

 

Footnotes: Michael is an experienced employment lawyer who provides practical, commercial and results-driven advice to a wide range of clients in respect of disciplinary matters, redundancy & reorganisation, absence and performance issues, employment contracts & handbooks and executive appointment & exits. Michael also defends employment tribunal claims.