Evidence of an anonymous witness: is it reliable?
Jackie Denham explores whether the evidence of an anonymous witness can be reliable?
In a recent case, the Employment Appeal Tribunal (EAT) held that it is not necessarily unfair for an employer to dismiss an employee in reliance on the evidence of an anonymous witness.
The case concerned Mr Christie, a carpenter, who worked for a housing association in Wales for over 14 years. He was summarily dismissed for gross misconduct following a complaint raised by a tenant (T) claiming that Mr Christie had made homophobic comments to her whilst carrying out work in her property. T was interviewed by an investigation officer and, subsequently, by a manager carrying out a disciplinary hearing, however, due to personal circumstances, T was unable to provide further evidence at the appeal stage. T also asked to remain anonymous. Mr Christie denied any wrongdoing and thus brought a claim arguing that he was dismissed unfairly.
The Employment Tribunal (ET) agreed with Mr Christie and concluded that the employer had not established a genuine belief that he was guilty of the conduct alleged and therefore the employer had acted unreasonably in accepting T’s account when she had refused to provide further evidence. The ET further found that the employer’s investigation was unreasonable, and it had been outside the range of reasonable responses to have dismissed an employee with 14 years’ service in those circumstances.
The EAT overturned ET’s decision and held that the ET had failed to explain why it rejected the employer’s evidence of its belief in Mr Christie’s misconduct. The ET had relied on the fact that the employer had accepted that Mr Christie was not homophobic and it went on to infer that, by accepting Mr Christie was not homophobic, the decision-taker could not have genuinely believed that Mr Christie had made homophobic comments. The ET had impermissibly substituted its view for that of the employer in terms of T’s credibility and had reached a perverse conclusion.
The ET had not explained why it was unreasonable for the employer to accept T’s account. The EAT held that they wrongly concluded that it had been outside of the band of reasonable responses for an employer to rely on the evidence of an anonymous witness and considered there to be no ‘logical and substantial’ ground for concluding that T’s evidence was not truthful. Furthermore, the EAT found that the ET had erred in concluding that T had “refused” to give further evidence when she had only been asked once at the appeal stage and declined due to personal circumstances. This case was therefore sent back for rehearing by a different tribunal.
The EAT’s ruling demonstrates the importance of following correct procedures when relying on the evidence of reluctant witnesses. Where a witness requests anonymity, employers should investigate the reason and motive behind their request because the ET will scrutinise the reasonableness of the employer in relying on such evidence if they subsequently decide to dismiss. Employers should therefore carry out a balancing act between the perceived need for the witness to remain anonymous and the need for the employee to know the details of the case against them in order to be given a fair hearing. For further advice concerning how to handle reluctant witnesses, please contact the FSP employment team.