Tue 04 Aug 2020

Employer's reliance on anonymous witness was reasonable

Relying on anonymous witness evidence in misconduct proceedings can make a fair dismissal difficult.

For a dismissal to be fair one of the key criteria that must be met is the employee must know the details of the case against them.  However, not all witnesses are prepared to give evidence against a colleague and may ask for anonymity. 

In Tai Tarian Ltd v Christie Mr Christie had been employed as a carpenter for over 14 years at the time of his dismissal.  Tai Tarian Ltd was a housing association and it was a tenant rather than a colleague who made allegations - of making homophobic comments - against Mr Christie. 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 - after which Mr Christie was dismissed - and was unable to attend the appeal for personal reasons.  Neither the disciplinary manager not the appeal manager were able to meet the tenant.

Mr Christie had denied the allegation against him maintaining he would never have made any such comments.  During the disciplinary hearing he requested details of the tenant but they were not disclosed.  His appeal was unsuccessful despite a number of character references being provided by Mr Christie. 

An employment tribunal upheld Mr Christie's claim of unfair dismissal.  It found that having accepted other evidence - the character references - that Mr Christie was not homophobic, the employer had not established a genuine belief that he was guilty of the alleged conduct.  The employer had also acted unreasonably in accepting the tenants account, the investigation was unreasonable and it was outside the band of reasonable responses to dismiss someone with 14 years of service in these circumstances.

The EAT overturned the decision.  The EAT found that the tribunal had wrongly concluded that because Mr Christie was not homophobic that meant he could not have made homophobic remarks.   No such inference should have been drawn.  The tribunal had also failed to explain why the employer was unreasonable in accepting the evidence of the tenant.  She had given evidence at two interviews, was not invited to the disciplinary and could not attend the appeal for personal reasons (which the tribunal had classified as a refusal to attend).  The case was sent back to a different tribunal for a re-hearing.

Anonymity of witnesses should be avoided where at all possible, as it is likely to put the accused employee at a disadvantage.  Should a scenario arise where a witness does not wish to be identified the employer needs to balance the need for anonymity with the accused employee's need to know the details of the case against him.  Although the circumstances of this case were such that the EAT were of the view that it was within the band of reasonable responses for the employer to preserve anonymity this will certainly not always be the case.  In assessing whether the employer's actions were within the band of reasonable responses an employment tribunal will consider why there was a need for anonymity and whether the employer has balanced that need with the employee's need to know the details of the case against him.  Often that balance will only be achieved where the witness is genuinely in fear for his or her physical safety.  If the employer does decide to proceed relying on anonymous witness evidence it should attempt to obtain corroboration if possible, consider making tactful enquiries into the character and background of the witness requesting anonymity and try to identify whether the witness may have any reason to fabricate evidence. 

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