Anonymous evidence


Sometimes employers rely on allegations from employees who want to remain anonymous. Employers are allowed to rely on anonymous evidence in both disciplinary and grievance hearings. However, this kind of evidence undermines an employee’s fundamental right to know the case against them so as to challenge it effectively. Even though evidence is anonymous, the employer must still meet their basic duty to conduct a fair investigation. The more serious the allegations, the more rigorous the investigation must be.


Acas says employers in this situation should always look for good corroborative evidence and explore why the witness wants to remain anonymous (for example, fear of reprisal) and whether they have any motive to lie about the accused employee. 


A rep representing a member where the witness evidence is anonymous should ask for guidance from a full-time official and could consider the following steps with the member:


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


• asking for a written explanation as to why the witness insists on remaining anonymous;


• pointing out that far less weight can be placed on the evidence of someone who is not willing to come forward;


• asking to see the evidence with names and other details blanked out to conceal identity;


• asking to be allowed to put written questions to the witness via the employer. A manager should put these questions (as well as their own questions) to the anonymous witness, and then present the answers to the member for their response before the hearing; 


• reminding the employer of the Acas Code (see Chapter 1) and asking what safeguards are in place to ensure the evidence is properly tested and examined. For example, there should normally be at least one reliable witness who is willing to be identified, or other corroborative evidence, such as documents or CCTV, to back up the anonymous evidence. 


Sometimes the situation is reversed and members want to give evidence anonymously against a manager or colleague, for example, in the context of bullying. Members should understand that even if evidence is given anonymously in the internal hearing, their identity is likely to be revealed at any later tribunal hearing, where they may need to be cross-examined. 


In practice, collective approaches to inter-personal issues like bullying or harassment are often safer and more effective than raising an individual complaint. Collective grievances are looked at in Chapter 12. 


A member who wants to remain anonymous should make sure this is clearly agreed in writing before providing their witness statement. If their anonymity is not to be preserved, this should be explained clearly, and appropriate support provided. Here is a recent example of the consequences of a misunderstanding over confidentiality:


Reasonable adjustments must be made to the investigation process for disabled workers. Examples include allowing the right to be accompanied, and to have advance notice of the allegations, even if non-disabled workers would not normally be given the same advance notice under the employer’s procedure (RBS v Docherty UKEAT 0489/12/RN).


Reps should encourage members who are unwell, or who have a disability that impairs their ability to cope with the investigation, to organise a letter from their GP explaining their condition, any medication, how their ability to cope is impaired, and what steps could be taken to help them. 


Sometimes the disciplinary process itself results in the worker becoming unwell, or even disabled. This happened in Hibbett v The Home Office & Others [2013] UKEAT 0138/13/2410, when the claimant developed depression. The EAT said it would have been a reasonable adjustment to delay the investigation until an occupational health report was available.