Anonymous evidence

Sometimes employers rely on allegations from employees who want to remain anonymous. The basic rule is that where an employee is not given proper details of allegations because of the need to protect the identity of complainants, the employee’s need to know the case against him or her has to be balanced against the strength of the complainants’ need for anonymity. The more relevant the information that is withheld, the more persuasive the reasons must be for seeking anonymity. Further, as always, the more serious the implications for the employee if found guilty, the higher the standard of the investigation.

Acas recommends that employers in this situation should always search for good corroborative evidence and ask themselves questions as to the possible motivation of those wishing to remain anonymous (for example, fear of reprisal) and whether they have any reason to make things up about the employee.

A rep faced with a disciplinary in which the employer’s witnesses want to stay anonymous should:

• ask for guidance from a full-time official;

• object in principle, pointing out that the rules of natural justice demand that the employee is told the case against him so as to defend himself;

• ask for a written explanation why the witness insists on remaining anonymous;

• ask to see whatever witness statement or other evidence has been provided by the witness to HR. This may be handed over to you with names and other details blanked out to conceal identity;

• ask what safeguards the decision-maker is putting in place to make sure the evidence of the anonymous informants is properly tested and examined; and

• remind the employer of the importance of the Acas Guidance, in particular the need to question the witness’s motivation for making the allegations and to look for good corroborative evidence.

In an extreme example of the use of anonymous evidence, Surrey County Council v Henderson UKEAT/0326/05, the EAT refused to conclude that an employer acted unfairly when it dismissed an employee for gross misconduct for making threats of physical violence putting “a number of individuals in fear of their physical safety”. No details were provided of the identity of the complainants, or even the incidents complained of, despite protests by the union rep. No further details were given to the claimant or his rep. Neither were they given copies of the statements, even in redacted form. It is important to note that this extreme case involved allegations of physical violence and fear of reprisal.