Employers dealing with allegations made against an employee will often need to take statements from other employees who may have witnessed what happened. Where witnesses are happy to cooperate with the employer’s investigations, matters are usually fairly straightforward. However, where employees are not prepared to cooperate, or say they will only give evidence on an anonymous basis, matters become more complicated. This article looks at various options available to employers in these circumstances.
When an allegation of misconduct is made against an employee, then the employer will clearly need to investigate the allegation to establish whether or not there is a case to answer at a disciplinary hearing. This investigation will normally involve reviewing any documentation relating to the incident (if any), reviewing any CCTV etc and, if relevant speaking to any witnesses. We often come across situations where witnesses are only prepared to tell the employer what happened if they can remain anonymous – in other words, they don’t want to be seen as the “snitch” who may lead to one of their colleagues getting sacked, or because they are afraid of repurcussions.
In this situation, the desire for employees to remain anonymous has to be balanced against the need for the accused employee to know what he/she is accused of and what the case is which he/she is required to answer. The employer should always try to establish why the witness is reluctant to give a statement, and where possible reassure them. In the situation where there is a real and genuine fear of reprisals, it may be permissible to remove a person’s name from their statement, or to delete any parts of the statement which might lead to the identification of the witness. That said, if any subsequent dismissal is going to be found to be fair, the accused must be given enough information about the allegations against them so that they have the opportunity to respond. This is often a difficult balancing act for employers, but wherever possible they should try to persuade reluctant witnesses to be prepared to come forward openly and not hide behind a cloak of anonymity.
The mere fact that a dismissal takes place where witness identity has been withheld will not in itself render the dismissal unfair, provided the accused has had enough information to understand and have had the opportunity to rebut the allegations against him/her. However, even where employers agree to respect the anonymity of witnesses, they should be aware that in any subsequent Employment Tribunal proceedings it may no longer be able to maintain that position. The Employment Tribunal has the power to require that witnesses be identified and come forward, but where the employer or witness can show that they had a well founded fear, such as fear of violence against them or their families etc, the Employment Tribunal is very unlikely to do this.
Each case will depend on its facts. In one extreme case in which we advised, the partner of an employee accused of misconduct had recently been released from prison, where he had been serving a sentence for arson and attempted murder. The accused employee made it clear that her partner would “sort” anyone who gave evidence against her – and in that case we had no difficulty in persuading the Employment Tribunal that the witnesses’ identity should be withheld. As always, employers facing these types of situations should always get advice from us at the outset.
We are experienced in talking employers through investigations in alleged cases of misconduct. If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).