When an employer identifies witnesses when investigating potential misconduct it is normal for witnesses to either be interviewed or provide a statement that they sign and date. It is not uncommon for us to be asked whether the employer can anonymise witness statements obtained during the disciplinary investigation.
What does the law say?
Whilst there is no legal requirement to disclose the identity of witnesses, failure to do so will always undermine the fairness of the process. This is because the accused employee has lost the right to challenge properly the evidence. Employers have an obligation to undertake a fair disciplinary procedure, which will include attempting to obtain reliable, corroborated evidence.
What happens if a witness asks to remain anonymous?
When a witness requests to remain anonymous, we believe that the employer’s first step should explore the witness’ reasons for wishing to remain anonymous. Perhaps they would prefer to remain anonymous. Perhaps they are unsure of what they have alleged. It is not unheard of for witnesses to fabricate allegations.
A common theme will be fear of retribution. If this fear is held and it is reasonable to anonymise the statement then it can be done, and a reasonable employer will seek further evidence to support the witnesses statement. This could be evidence of the Line Manager who interviewed the witness that wishes to remain anonymous. It could be that out of three witnesses one is unprepared to have their identity revealed but another two are comfortable.
A technique that can improve the fairness of an anonymised witness statement is where the investigating manager invites the employee to pose questions of the anonymous witness through the employer. The witness’s answers can then be examined during the disciplinary process.
One final thing to note though. The employer should make the witness aware that their anonymity cannot be guaranteed. If the matter results in an employment tribunal, they may be subject to a witness order requiring their attendance at the employment tribunal to provide evidence. They will not be able to be anonymous then.
If we can be of any assistance with your tricky misconduct investigation, please call us on 01527 909436.