08-08-2007
Keeping it confidential
How do you deal with the delicate issue of a member of staff wishing to remain anonymous when providing evidence against a fellow worker during grievance or disciplinary hearings?
Very often we are faced with witness statements coming forward during disciplinaries or grievances where the person giving the statement wishes to remain anonymous either because they are embarrassed to be identified in front of their colleagues or because they are concerned they might face reprisals.
The Court of Appeal ruled last month in relation to these witness statements. An Employment Appeal Tribunal ruled that a tribunal must consider whether disclosure of the statement is necessary in disposing of the proceedings in a fair way and not simply of “obvious relevance”.
The Court further ruled that a tribunal must take into account the need to enable employees to make statements in confidence where necessary.
This case means that an employer cannot give a guarantee that a statement will remain anonymous if the case goes to tribunal although the employer should, as the tribunal should, consider why a statement has been given anonymously.
It would seem that confidentiality alone is not a good enough reason to withhold the name of someone giving a statement during a disciplinary matter. However if there is evidence that the author of the statement will suffer a detriment, whether that be in terms of their working conditions or because of a genuine threat of intimidation or violence, then it would seem that the employer may be justified in withholding the author of the statement.
In extreme cases we note that it may be permissible to withhold the entire statement if the substance of the statement discloses who the author is. This comes with a proviso that the gist of the statement however must be provided to the employee if the employer is to rely on it to make a dismissal.
Very often we are faced with witness statements coming forward during disciplinaries or grievances where the person giving the statement wishes to remain anonymous either because they are embarrassed to be identified in front of their colleagues or because they are concerned they might face reprisals.
The Court of Appeal ruled last month in relation to these witness statements. An Employment Appeal Tribunal ruled that a tribunal must consider whether disclosure of the statement is necessary in disposing of the proceedings in a fair way and not simply of “obvious relevance”.
The Court further ruled that a tribunal must take into account the need to enable employees to make statements in confidence where necessary.
This case means that an employer cannot give a guarantee that a statement will remain anonymous if the case goes to tribunal although the employer should, as the tribunal should, consider why a statement has been given anonymously.
It would seem that confidentiality alone is not a good enough reason to withhold the name of someone giving a statement during a disciplinary matter. However if there is evidence that the author of the statement will suffer a detriment, whether that be in terms of their working conditions or because of a genuine threat of intimidation or violence, then it would seem that the employer may be justified in withholding the author of the statement.
In extreme cases we note that it may be permissible to withhold the entire statement if the substance of the statement discloses who the author is. This comes with a proviso that the gist of the statement however must be provided to the employee if the employer is to rely on it to make a dismissal.
