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How to Deal Fairly With Witness Anonymity?

on Friday, 10 July 2020.

Balancing requests for witness anonymity against the need to conduct a fair disciplinary hearing can be difficult for employers.

The recent Employment Appeal Tribunal (EAT) case, Tai Tarian v Christie, serves as a helpful reminder that it is possible to achieve a fair dismissal based on anonymous witness evidence, but care must be taken to ensure the overall fairness of the process.

Tai Tarian v Christie

The Claimant had been employed as a carpenter for the Respondent's housing association for more than 14 years. He was dismissed following an allegation that he made homophobic comments to a tenant. The tenant gave her account during two investigation interviews, but requested her anonymity be preserved more widely. The Claimant was invited to a disciplinary hearing, following which he was dismissed. He alleged the dismissal was unfair.

What Did the Tribunal Decide?

At first instance, the Employment Tribunal (ET) agreed the dismissal was unfair, finding the Respondent had unreasonably relied on the truthfulness of the anonymous tenant's account. The Respondent appealed to the EAT. 

The Respondent's appeal was successful. The EAT found the Tribunal's reasoning was flawed and that it had not demonstrated 'logical and substantial grounds' to support its finding that the anonymous evidence could not reasonably be accepted as truthful. The EAT referred to the case of Linfood Cash & Carry Limited v Thompson, which sets out useful guidance for the treatment of evidence given by informants to employers, particularly where the informant fears reprisals:

  1. a written statement should be made by the informant with any deletions to prevent identification. The statement should be available to the employee who is being disciplined or dismissed
  2. the motives and background of the informant should be investigated
  3. the informant should be examined at each stage of any investigation and
  4. careful notes should be taken of all interviews with the informant.

The case has now been remitted to a fresh Tribunal for rehearing.

What You Need to Consider

The EAT's decision demonstrates that dismissing on the basis of anonymous witness evidence will not necessarily render a dismissal unfair. Care should, nevertheless, be taken to investigate why there is a need for anonymity, and whether the witnesses' concerns can be allayed through any means other than having their identity protected. Where the need for anonymity is justified, thought should be given to the potential impact anonymity might have on the employee's ability to respond to the allegations, and how this might best be managed. Where possible, agreement should be obtained at each stage of the process where the identity of one or more parties is to be protected or revealed.   

If you require specialist legal advice relating to investigations involving anonymous witness evidence, please contact Michael Halsey in our Employment Law team on 07554 432 829, or complete the form below.

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