News & Insights
23 Aug 22
The anonymous witness: managing an investigation when staff refuse to be identified
Andrew Forrest
Safeguards should be put in place to balance the need to protect certain informants against the need for a fair and transparent investigation.
In any disciplinary or grievance investigation, witness statements are likely to form a substantial part of the evidence. Unfortunately, not all witnesses are eager to come forward and give formal statements. Whilst anonymous statements may be taken to protect the identity of these individuals, care must be taken to ensure that the reason for requesting anonymity does not impact on the credibility of the evidence. Safeguards should be put in place to balance the need to protect certain informants against the need for a fair and transparent investigation.
When should an anonymous statement be taken?
At first instance, all witnesses should be approached with the intention of taking named, signed statements. Such statements should be taken in private and the need for confidentiality should be expressed to all parties involved in the matter. In many cases this will cause little problem as most employees will feel ‘duty bound’ to cooperate.
To encourage employees to put their name to their witness evidence, you must ensure that, as an employer, you honour the confidentiality requirement and take all reasonable measures to ensure that the informant is not subject to any detriment for making the statement. However, you should make sure that witnesses understand why and how the statements are to be used and that they may be disclosed to the person accused as part of the disciplinary process.
What are the reasons for the request?
If an employee requests anonymity, the reason behind their request should be closely analysed. If there is a real and legitimate fear of physical reprisal for making the statement anonymity may be the only reasonable way of persuading them to give evidence.
If this is not the case, the employer must question whether the request for anonymity casts doubt on the credibility of the evidence. For example, is the reluctance of the informant to put a name to the statement due to a lack of genuine belief in that statement or could there be another ulterior motive? Any investigating officer or disciplinary officer should demonstrate and record that they have considered this point and that they have given appropriate weight to the evidence accordingly. Basing a decision solely on anonymous statements is unlikely to be reasonable and advice should be taken from your HR Rely advisor if you are left in this situation.
A balancing act
When deciding what weight to give to an anonymous statement, an employer must balance the need to protect the informant with the right of the accused to know the case against him. A tribunal looking at any subsequent dismissal will carry out roughly the same exercise to determine whether the employer’s investigation was within the band of reasonable responses.
Protecting anonymity
In all cases where statements are to be taken anonymously the witness must be informed that, while all reasonable steps will be taken to protect their anonymity, no guarantee of complete confidentially can be given.
In some cases, the circumstances of the case may make the process of anonymising evidence pointless. For example, in a case in which an employee is alleged to have attacked the witness, it is likely that the mere fact a statement has been made will be enough for the accused to identify the party providing information.
A less immediate risk will arise is if any criminal or civil proceedings are brought in relation to the matter, including at an employment tribunal. The accused employee would then likely seek disclosure of the witness’s identity.
If the witness is happy to proceed in giving the anonymous statement all efforts must be made to remove clues to their identity. The most obvious step needed is to remove any reference to their name from the statement. Any references which may lead to identification should also be removed. More care is likely to be needed within small businesses where individuals are easily identifiable.
What steps can be taken to ensure a fair disciplinary procedure is followed?
The use of anonymous statements can potentially put the accused employee at a disadvantage by preventing them from being able to challenge witness evidence. Employers must therefore put safeguards in place to ensure that a fair hearing is undertaken.
In Linfood Cash and Carry Ltd v Thompson [1989] the Employment Appeal Tribunal (EAT) set out the following guidelines for employers in relation to anonymous statements:
- The statement should be taken in writing, with all identifying remarks included. (If required, anonymity should be achieved by editing copies of the original statement).
- The investigating or disciplining officer should pay particular attention to:
- The date, time and place of each or any observation or incident in the statement
- How clearly and accurately the witness was able to observe the incident
- Whether there is any relevant circumstantial evidence (which may make certain details memorable to the witness)
- Whether the witness has any reason to fabricate their evidence
- The statement should then, where possible, be compared to other statements to see if these corroborate with and verify the witness’s evidence.
- Where appropriate, tactful enquiries should be made of the witness’s character and background to help assess the credibility of their evidence.
- Consideration should be given to whether the disciplinary process should continue given the witness’s fear of identification.
- If the disciplinary process continues, the manager responsible for each stage of that process should re-interview the witness to ascertain what weight should be given to the statement.
- The written statement, with any redactions or omissions necessary omissions to protect the witness’s identity should be made available to the accused employee and his representatives.
- The disciplinary meeting should be adjourned if questions arise in relation to the witness’s evidence. The disciplinary officer should then put the questions to the witness.
- Notes taken at meetings throughout the disciplinary process should be precise and full.
- Any evidence provided by the investigating officer should be submitted in written form.
These guidelines should be followed as fully as possible during the disciplinary process. However, the EAT did note that “each case must depend upon its own facts, and circumstances may vary widely”. In extreme circumstances where the threat of physical violence is real, it may be deemed reasonable to withhold the statements from the accused employee altogether, but still to allow the disciplinary officer to consider them. Such decision should not, however, be made before discussing the precise circumstances of the matter with your HR Rely advisor. Ordinarily, disciplinary decisions should only be based upon evidence which has been put to the accused.
Andrew is a Fellow of the CIPD and has a masters’ degree in human resource management and industrial relations. His experience covers both the public and private sectors and includes tribunal advocacy, consulting and negotiating with trade unions, training, mediation, seminar presentations and advising on employment law.
Your HR Rely advisor can support you with all aspects of managing a disciplinary investigation, including any difficult issues relating to witness evidence. Alternatively, our specialist workplace investigators are always available to conduct disciplinary or grievance processes on behalf of your business. Please do not hesitate to get in touch to talk through your options.
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