Employment & Pensions Blog: Using anonymous witness evidence in a disciplinary process

In this week’s blog, we explore how employers can overcome the struggles of anonymised witness evidence in disciplinary investigations and hearings.

When conducting a reasonable disciplinary investigation, in most cases it is necessary to obtain evidence from witnesses.  Whilst this is often straightforward, in some cases witnesses do not want to give evidence “on the record” and therefore ask for this to be anonymised. This piece covers what employers should do when anonymity is requested and how the right of the accused to know the case against them is balanced against this.

The Balancing Act

In circumstances where a witness requests anonymity, the employer should first explore the reasons why this is being requested and seek to understand if this necessary. For example, a witness could have a real and legitimate fear of repercussions for making the statement and this could be a legitimate reason to withhold their identity. 

A decision to use anonymised witness evidence needs to be carefully balanced against the rights of the employee accused to know and understand the case against them and put forward representations in response to this.  Whilst the identity of a witness is not always needed for an employee to know the case against them, it can be relevant if the employee and the anonymous witness have some form of history/dispute which could call the credibility of the evidence into question.  The Employment Tribunal will look at this balancing exercise when determining whether an employer’s investigation was within the band of reasonable responses.

Guidance for employers

Employers are recommended to look at the following guidelines laid out by the Employment Appeal Tribunal in Linfood Cash and Carry Ltd v Thompson when making this balanced assessment:

• The statement should be in writing.
• The investigating officer(s) should focus on:
  • The date, time and place of any observation/ incident in the statement.
  • How clearly and accurately the witness was able to observe the incident.
  • Whether there is any relevant circumstantial evidence.
  • Whether the witness has any reason to fabricate the evidence.
• The statement should be compared to other statements for verification purposes.
• If appropriate, tactful enquiries should be made to of the witness’ character and background to assess the credibility of their evidence.
• The statement (with any redactions etc to protect the witness’ identity) should be made available to the accused employee and their representatives.
• The disciplinary meeting should be adjourned if questions arise in relation to the witness’ evidence and those questions should then put be put to the witness by the disciplinary chair.

If it is decided in any case that anonymous evidence will be used, it is important that the expectations of witnesses are managed that their identity may not remain anonymous if there is a subsequent Tribunal claim. 

If you have any queries in relation to disciplinary investigations, please get in touch with a member of the Employment Team.