When conducting a disciplinary investigation, it will often be necessary to speak to other employees to obtain evidence and gather witness statements. However, some employees may wish to submit an anonymous statement or be reluctant to give out any information altogether.
If the matter proceeds to a formal disciplinary hearing, all evidence considered including any witness statements obtained, should be provided to the employee to ensure that they are aware of the allegations made against them. If they are unaware of what has been said and by whom, they may not be able to fully and fairly defend themselves against the allegations.
As an employer, you may face the problem that an employee will only provide information as a witness if they are given the assurance of anonymity. If this request is made, you will need to establish as soon as possible the reason why the witness wants to be anonymous. For example, is there a fear of intimidation or violence from the accused employee, or are they simply uncomfortable “telling” on their colleagues?
If you do decide to take steps to anonymise a witness, you cannot guarantee complete anonymity. If the accused employee proceeds to an employment tribunal, a request for disclosure of the witness statements or the minutes to any interview in relation to the investigations will be made. This will identify the witness. Only in exceptional circumstances will anonymous statements be deemed reasonable by the employment tribunal.
In Turnbull v Mecca Bingo Ltd (EAT), the employee (T) was provided with a broad outline of the allegations against her but was not given details of incidents or the name of the witness. The incidents were of an extremely serious violent and physical character and the witness had been unwilling to make a statement to the employer or the police. There were other witnesses who also refused to provide statements due to the climate of fear. The employee was dismissed for gross misconduct. The EAT held that there were exceptional circumstances which justified withholding identity of witnesses and that it was reasonable for the employer to believe that T (and her associates) might inflict retribution if she found out who made the complaints against her.
Linfood Cash & Carry Limited v Thompson provides guidance on the need to balance between a fair hearing for the employee and protecting the anonymity of witnesses. Witnesses’ statements should be reduced to writing and the following should be noted:
- the date, time and place of each observation or incident;
- the witnesses’ opportunity to observe clearly and accurately;
- any circumstantial evidence such as knowledge of a system;
- the reason for the informant’s presence;
- any memorable small details; and
- whether the witness had any reason to fabricate evidence.
The Acas guide on ‘How to handle reluctant witnesses in investigations’ advises that once it has been agreed that a witness can talk anonymously, the interview should be conducted in the normal way. However, an investigator should consider what might need to be removed or redacted to prevent identification afterwards. They advise that anonymity should be avoided as it is likely to put the employee under investigation at a disadvantage.