Can I use anonymous evidence in a disciplinary procedure?

The question of whether employers can use anonymous evidence in a disciplinary procedure is a topic which often raises concerns regarding transparency, conflicting rights and reliability.

The use of anonymous evidence can significantly impact the outcome of a disciplinary procedure, potentially affecting the career and reputation of employees involved. Therefore, it is important that employers maintain a balance between the rights of witnesses who wish to maintain anonymity and the employee in question.

This article discusses how anonymous evidence may be used in a disciplinary procedure and where it is used, the considerations that must be made by employers.

Exploring the legitimate concerns

When conducting a disciplinary investigation, witnesses are not always willing to come forward and give statements as they may wish to remain anonymous.

When faced with the situation where a witness does not want their identity to be revealed, it is essential that employers assess and establish any legitimate concerns of the witness. A witness may not wish for their identity to be revealed where they have genuine fears of retaliation or repercussions for providing evidence openly, or where the subject matter is particularly sensitive.

Balancing rights

Although it is crucial that employers take the witnesses’ request for anonymity seriously and acknowledge their concerns, they must bear in mind the rights of the accused employee to know and understand the case against them and put forward responses to this.

Finding the balance between the conflicting rights of witnesses and the accused employee can be a difficult task for employers. However, a set of guidelines to make a balanced assessment was established by the Employment Tribunal in the case of Linfood Cash and Carry Ltd v Thompson. The Employment Tribunal has recommended that employers follow the guidelines set out in this case when a witness requests for their identity to be kept anonymous.

The main takeaways from this are as follows:

• information provided by the witness should be written down in one or more statements;
• any statement should detail specific incidents;
• the statement is made available to the accused employee;
• the employer considers the background and motives of the witness in question;
• at each stage of the investigation process the decision makers should interview the witness and satisfy themselves that weight is to be given to the information; and
• written notes should be taken of every interview with the witness.

Drawbacks of using anonymous evidence

While any information provided by witnesses may be valuable in uncovering potential wrongdoing in a disciplinary procedure, there may be potential issues around the reliability of anonymous evidence. One of the primary concerns is the inability to verify the credibility and accuracy of anonymous allegations, as they may lack transparency and accountability.

Another issue may arise where the anonymous witness has prior history with the accused employee that may hinder the reliability of the evidence. Additionally, if the accused employee is not aware that the anonymous witness is an individual who they have had a previous altercation with, it may mean that they do not have full knowledge of the evidence made against them.

From a legal perspective, the admissibility of anonymous evidence in disciplinary proceedings largely depends on the specific circumstances of each case. Where the Employment Tribunal is faced with a disciplinary matter that involves anonymous evidence, it will use a balancing exercise to establish whether the anonymous evidence meets the standard of fairness. Factors of this balancing exercise include considering the reliability of the evidence, the severity of the allegations and any alternative means of verification. Therefore, anonymous evidence may not be used by the Employment Tribunal it if is decided that using the anonymous evidence does not create a balance between the rights of the witness and accused employee. If the Employment Tribunal chooses not to use the anonymous evidence, this may have a significant impact on the decision of the Tribunal.

Employers must also consider the potential impact of relying on anonymous evidence on employee morale, trust, and organisational culture. The perception of unfair treatment or arbitrary decision-making can undermine employee engagement and erode trust in leadership. Moreover, if employees believe that they can be subject to disciplinary action based on unverified anonymous complaints, it may create a climate of fear and suspicion in the workplace.

Establishing clear policies and procedures

To address any concerns that employees may have about the use of anonymous evidence, employers should adopt clear and transparent policies regarding the use of anonymous evidence in disciplinary procedures. These policies should outline the circumstances under which anonymous evidence may be considered, the steps taken to verify its reliability and the rights of employees to challenge or respond to such evidence.

Additionally, providing opportunities for employees to report concerns or grievances through formal channels may help mitigate the reliance on anonymous complaints in disciplinary proceedings.

Furthermore, employers should ensure that any disciplinary proceedings are conducted in accordance with the Acas Code of Practice on disciplinary and grievance procedures. This Acas Code of Practice includes the right for the accused employee to:

• know the allegations being made against them;
• respond to any evidence; and
• have a fair and impartial hearing.

It is important to note that if anonymous evidence will be used, it must be expressed to the witness that their identity may not remain confidential if a Tribunal claim arises from the disciplinary proceedings.

Conclusion

In conclusion, employers can use anonymous evidence for legitimate purposes in disciplinary procedures, but this must be approached with caution. Subsequently, it is crucial for employers to balance the rights of the protection of witnesses with those of the accused employee.

If you have any questions about the use of anonymous evidence in disciplinary procedures, our Peace of Mind Team can provide specific advice and our Document Audit Team can help draft relevant policies. Contact our employment law team by emailing employment@warnergoodman.co.uk or by calling 023 8071 7717.