Case update (3): Unfair dismissal – Anonymous witnesses

Summary:  Is it unfair for an employer to dismiss an employee based on the evidence of an anonymous witness?

Not necessarily, says the EAT in Tai Tarian Ltd v Christie, available here.

Background:  During the investigation stage of employers’ internal procedures there maybe witnesses who wish to remain anonymous. To rely on such evidence, the EAT in a previous case of Linfood Cash & Carry Limited v Thompson recommended guidance based on a balancing the need for a fair hearing with the protection of witnesses.  The guidance is that:

  • information provided by the informant should be written down in one or more statements;
  • the statements must be made available to the employee who is under investigation;
  • an employer should consider the background and motives of the witness in question;
  • at each stage of the investigation process the decision makers should interview the informant and satisfy themselves that weight is to be given to the information; and
  • written notes should be taken of all interviews with the witness.

Facts:  The employee, Mr Christie, was employed as a carpenter by Tai Tarian, the employer (a housing association) for over 14 years. The employer was informed that the employee made several homophobic comments to a tenant whilst carrying out work on her property. The employee denied the allegation against him maintaining he would never have made any such comments.

The tenant, who suffered from anxiety, was interviewed twice as part of the disciplinary investigation and indicated her concern about repercussions should her identity be disclosed. She was not asked to attend the subsequent disciplinary hearing and was unable to attend the appeal for personal reasons. Neither the disciplinary manager not the appeal manager were able to meet the tenant. During the disciplinary hearing the employee requested details of the tenant but they were not disclosed.

The employee was dismissed and his appeal was unsuccessful.  This was despite the appeal manager noting that she did not believe the employee was necessarily homophobic, and the provision of several character references which the employee believed proved he was not homophobic.

The employee brought a claim for unfair dismissal on the basis that the dismissal process had been unfair because of the reliance on evidence of an anonymous witness.

Tribunal decision

The Tribunal upheld the claim and found that, having acknowledged that other evidence demonstrated that the employee was not in fact homophobic, it did not accept that the employer’s decision makers held a genuine belief in the employee’s misconduct.

Further, the Tribunal found that the investigation was unreasonable and the decision to dismiss based on an anonymous witness fell outside the band of reasonable responses which were open to the employer. The employer had acted unreasonably in accepting the truthfulness of the tenant’s anonymous account, when the tenant had not been interviewed by either decision-makers.

The employer appealed.

EAT decision

The EAT upheld the employer’s appeal and ruled that the Tribunal had not met the test of demonstrating “logical and substantial grounds” to support its conclusion that the employer could not have reasonably accepted the tenant’s evidence as truthful.

The EAT referred to the guidance set out in Linfood Cash and Carry v Thomson and held it had been within the range of reasonable responses for the employer to preserve the anonymity of the tenant. It disagreed with the Tribunal’s rationale that reliance on the tenant’s statements, without having further evidence from her, was unreasonable.  Further, the Tribunal had been wrong to draw the inference that because the employee was not homophobic, he could not have made homophobic remarks.

The case was sent back to a different Tribunal for a re-hearing.

Implications:  The EAT’s decision here confirms that a dismissal based on anonymous witness evidence will not necessarily render the dismissal unfair. However, anonymity of witnesses should be avoided where at all possible, as it is likely to put the accused employee at a disadvantage. The ACAS guidance on conducting workplace investigations (available here) only recommends anonymising a witness statement where a witness has a genuine fear of reprisal.

Employers should take care to investigate why there is a need for anonymity, and whether the witnesses’ concerns can be alleviated by any other means.  Where the need for anonymity is justified, consideration should be given to the potential impact anonymity might have on the employee’s right to know the allegations made against them and the ability to respond.    Employers should ensure that they investigate the credibility of the witness, including trying to identify whether the witness may have any reason to fabricate evidence.  The relevant decision makers should also directly interview the witness where possible.