When conducting a disciplinary process, we know that it is a requirement to follow a fair process to avoid any risk of the decision being found to be unfair. What is “fair” will vary depending on the circumstances, however, what is absolutely key is that an employer must make it clear to the employee what the allegation is, to enable them to defend themselves. So what happens when disciplinary allegations are reliant on the word of an anonymous witness, is it within the range of reasonable responses to dismiss? This matter was recently considered in the EAT case of Tai Tarian Ltd v Christie.
The Claimant, Mr Christie (“C”) was employed as a carpenter by the Respondent (a housing association), Tai Tarian Ltd (“R”). He was employed for 14 years before his summary dismissal in September 2017.
A tenant in one of R’s properties made a complaint that C had made homophobic comments. The tenant was interviewed as part of the investigation. C was suspended pending an investigation and was told only that he was being investigated for offensive and homophobic comments. In the investigation meeting, he was given no further information on the allegations and was told that the tenant, who has anxiety, had requested anonymity. C denied the allegation. A report of the investigation was made, and the matter proceeded to a gross misconduct hearing. C asked for details of the tenant who had made the complaint, as without that he could not properly defend himself, but this was refused.
On 3 October 2017, C was dismissed for gross misconduct. C appealed and submitted character references, but his appeal was not upheld. Neither the dismissing officer nor the appeals officer had spoken to the tenant; the appeals officer had intended to, but the tenant’s personal circumstances prevented this. Both decision makers relied on the previous interviews with the tenant by the investigation officer. The appeals officer accepted that C was not homophobic, but that this did not mean the allegations were false and the dismissal stood.
C brought a claim to the Employment Tribunal ("ET"). The ET found that it was outside the range of reasonable responses for R to rely on an anonymous account, especially as neither decision maker had interviewed the tenant, and it found that the tenant had “refused” to provide further evidence. It noted that there were inconsistencies between the tenant’s two interviews, and R should not have relied on her evidence over C’s. The dismissal was unfair. R appealed to the EAT.
The EAT allowed the appeal. It found that the ET had substituted its own view that the appeals officer did not have a genuine belief that C had made the remarks. It found that there was no evidence that the tenant had refused to give evidence, she had not been able to meet the appeals officer due to personal circumstances. In terms of fairness, the ET was correct in criticising some parts of the procedure, but it was reasonable in the circumstances to allow the tenant to retain anonymity. The ET had taken a “strongly adverse view” of the tenants account, and it appeared to conclude that it was unreasonable to accept her testimony. The EAT remitted the case to a fresh ET to consider.
What does this mean for you or your business?
It is important to remember that each case turns on its own facts, and this is not a general acceptance that relying on one anonymous witness is enough, but it also shows that it is not necessarily fatal to the fairness of the investigation if a witness requests to remain anonymous.
When a witness requests to remain anonymous the reasons and any potential motives for the request should be considered. The disciplinary officer in charge should keep a careful note that such consideration has been taken into account and why the decision was taken to allow anonymity. This will go a long way to establishing a fair hearing. A disciplinary officer should only agree to anonymise witness evidence in exceptional circumstances, generally where the officer believes that a witness has a genuine fear of reprisals against them for providing the evidence.
It is vital in any case involving misconduct that a reasonable investigation is carried out, as this is a key part of the test for fairness. Employers should follow their own policies and procedures and ensure that these are compliant with the ACAS code. Page 24 of the ACAS guidance touches on anonymity requests and is available in the link below.
What do you need to be doing now?
As an employer, ensure that your policies and procedures are compliant with the ACAS code. If you have any questions or queries, we are happy to help.
Click here to access the ACAS guidance for conducting workplace investigations.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.