An employee who has been with us for several years has been accused of bullying members of their team. The allegations are serious and could result in dismissal.
In line with our policy we have commenced an investigation by interviewing the relevant colleagues. However, we have already been told by some colleagues that they will give a statement only if it is anonymised. Can we use anonymous statements if disciplinary action is taken?
It is common for employees who are acting as witnesses to request this in such investigations. Often the employee will be concerned that the employee under investigation will target them personally for giving a statement, or there may simply want to increase the chances of being able to keep a harmonious team environment when the dust has settled.
However, natural justice in disciplinary matters dictates that the employee facing disciplinary action must be made aware of the full detail of the allegations against them, and be able to meaningfully challenge any evidence put forward by the employer. This creates a difficulty for employers, who must balance the witnesses’ desire for anonymity against fairness to the accused.
In some cases it may be possible for witness statements to be anonymised where the statement contains nothing that could make the identity of the witness clear. However, this is far trickier in bullying investigations, where it is likely that particular conversations between a witness and the accused will have to be recounted.
In any event, even if a statement can be anonymised, if doing so means that the accused is not in a position to challenge the statement, it may be unfair to him or her to keep it anonymous. This could potentially arise where the statement has been so heavily redacted that it is difficult to make sense of.
If you do proceed to dismissal based on anonymous statements and the employee claims unfair dismissal as a result, they are likely to call into question the fairness of the procedure as a result of being unable to challenge the evidence. An Employment Tribunal (ET) must assess the fairness of the decision to dismiss as well as the procedure leading to the dismissal, and a finding of unfair dismissal could be made on either of those points.
For that reason it is preferable not to use anonymous witness statements where possible. It may be helpful at the outset to tell the witnesses that they will face no repercussions as a result of giving their statement. However, this may not be enough to assuage doubt in all cases. If employees continue to refuse to give a statement unless it is anonymised, you may have to consider whether you can proceed with disciplinary action on that basis.
If you decide to go ahead, you should try to ensure that the statements contain as much detail as possible. In the event that the accused challenges part of a statement, it may be necessary to adjourn the hearing and return to the witness to ask further questions before resuming the hearing with the additional information.
Bear in mind that, in the event of a claim, the onus is likely to be on you to explain to the ET why relying on anonymous witness statements was reasonable in the circumstances, which will include a review of whether the witnesses had good reason to wish to remain anonymous.
If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.