16th July 2020

Anonymous witness evidence

Was the reliance on the evidence of an anonymous witness, in order to dismiss an employee, outside the range of reasonable responses?

Anonymous witness evidence during the course of disciplinary proceedings is a tricky matter but in the recent case of Tai Tarian v Christie, the Employment Appeal Tribunal (EAT) held that it was not outside the range of reasonable responses to dismiss someone with reliance on the evidence of an anonymous witness.

The claimant was employed by the respondent (a housing association) as a carpenter. A tenant of one of the respondent’s properties alleged that the claimant had made homophobic comments to her.

The tenant was interviewed by two managers but the tenant requested anonymity. They were not subsequently interviewed by the decision-making managers.

The Employment Tribunal (ET) found that the respondent had not established a genuine belief that the claimant was guilty of the conduct alleged as it had accepted that other evidence demonstrated that the claimant was not in fact homophobic.

The ET concluded that the respondent, in accepting the tenant’s account and relying on it despite her refusal to provide further evidence, had acted unreasonably. The ET also found that the respondent’s investigation was unreasonable, and it had been outside the range of reasonable responses to have dismissed an employee with 14 years’ service.

The respondent appealed.

It was found in favour of the respondent and held that the ET’s findings in relation to the question of fairness were unsafe. It said that in finding that the respondent had not established the reason for the claimant’s dismissal, the ET had failed to explain why it rejected the evidence given about the decision-taker’s stated belief about the claimant’s misconduct. The EAT commented that the ET had no good reason for finding that the respondent could not have reasonably accepted the tenant’s evidence as truthful.

The EAT also found that the ET had been wrong to conclude that the tenant had refused to give further evidence when she had only been asked once at the appeal stage and declined to do so due to personal circumstances. The EAT also found that there was no proper basis for concluding that the tenant’s account had been embellished. The ET had itself only found there to be “slight differences” in the evidence the tenant had given in her two interviews.

Whilst this case demonstrates that on occasions anonymous evidence can be relied on, it should always be treated with caution. An employee who faces disciplinary action is entitled to know the case against them and be given the right to respond. Anonymous evidence doesn’t by its nature prejudice this and reliance on such evidence can lead to unsafe dismissals.

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