A recent EAT case provides a reminder that while relying on an anonymous witness may be problematic, it does not necessarily make a dismissal unfair

The law on unfair dismissal in Great Britain was originally introduced under the Industrial Relations Act 1971. Advising as to whether or not a dismissal is likely to fall within the band of reasonable responses is something which employment lawyers deal with day in, day out. Now and again, a case reaches the Employment Appeal Tribunal (EAT) which shows that there are still shades of grey in what is generally considered to be a settled area of the law.

In the recent case of Tai Tarian Ltd v Christie [2020] UKEAT 0059_19_0303 (3 March 2020), the EAT considered under what circumstances an employer can rely on anonymous statements during disciplinary investigations.

The claimant, Christie, was employed as a carpenter by the respondent (a housing association) for 14 years. One of the respondent’s tenants complained that Christie had made homophobic remarks while carrying out maintenance work in one of their properties. Two interviews were subsequently held with the tenant, who requested anonymity as she suffered from anxiety. A disciplinary hearing followed and the decision was taken to dismiss Christie for misconduct. The decision-making managers were not able to interview the tenant – this was requested once at the appeal stage but the tenant refused for personal reasons.

Reasonable response?

Christie raised a claim for unfair dismissal, alleging that the dismissal process was unfair because of the reliance on the evidence of an anonymous witness. The Employment Tribunal (ET) upheld his claim, finding that the investigation was unreasonable and the decision to dismiss “based solely upon the complaint of an anonymous tenant… fell beyond the band of reasonable responses open to a reasonable employer of a similar size and with similar administrative resources”. The ET held that it was also unreasonable for the respondent to have relied on the anonymous account and to have preferred that evidence when the tenant had not been interviewed by either of the relevant decision-makers and had refused to provide any additional information.

The respondent appealed this decision and the EAT allowed the appeal. The EAT found that the tribunal had erred in its findings on the question of fairness. It concluded that the ET had not demonstrated any “logical and substantial grounds” for its conclusion that the respondent could not have reasonably accepted the tenant’s evidence as truthful. In the circumstances, it was within the band of reasonable responses for an employer to preserve the anonymity of the tenant. Further, it was not the case that the tenant had refused to provide additional evidence; she had simply declined to provide evidence on the one occasion she was asked. The case has been remitted to a different tribunal for re-hearing.

Commentary

Although the witness in this case was a tenant, a more common scenario is where a witness is a colleague of the employee under investigation and will only provide information if they are first given anonymity. The cases on this issue are clear that anonymity does not necessarily make a dismissal unfair, but the employer must balance the need to protect the identity of the witness with the need to provide a fair hearing for the employee under investigation.

Acas (in its Conducting Workplace Investigations guidance) advises that anonymity should be avoided where possible, as it is likely to put the investigated employee at a disadvantage. The guidance says an investigator should only consider anonymising witness statements where the witness has a genuine fear of retaliation.

While this case acts as a reminder that there are limited circumstances in which it will be reasonable for an employer to withhold the identity of witnesses, employers looking to do so should still proceed with caution.

The Author

Claire McKee, associate, Dentons UK & Middle East LLP

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