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