Spotlight – reluctant witnesses
The joys of undertaking an investigation are lost on some people and HR often faces a challenge in finding a willing and capable set of hands to be entrusted with this important exercise. A properly planned and executed investigation can be a major undertaking for an investigating officer to take on, usually on top of their day job. Little wonder that it can be a tall order to identify willing volunteers.
Similarly, identifying willing witnesses can be a further hurdle to overcome. Below are some tips from us which might help remove some of the pain when it comes to supporting and advising investigating managers on taking witness evidence.
At the outset of the investigation, scoping the terms of reference will assist in identifying relevant witnesses. If witness evidence is essential to the investigation it is crucial that the investigation manager gathers it promptly, before memories fade. Best practice is to carry out the interview in person, although a virtual meeting might be the only option at this stage. If the investigating officer is not easily able to take notes at the meeting, a scribe would be useful, so that the notes of the interview closely capture the key elements of what was said. As soon as possible after the meeting, witnesses should be provided with a statement to review and sign. This enables them to raise any inconsistencies quickly, rather than allowing the matter to drift and potentially undermine the quality and fairness of the evidence later on in the process. Gold standard dictates that witnesses should sign and date their statements, although an exchange of emails, with them confirming that they are happy to adopt the statement as their own, will suffice in an era of remote working.
A recent Employment Appeal Tribunal case (Tai Tarian Limited v Howell Wyn Christie) featured a common issue – that of the reluctant witness. How do you deal with someone who says they will only give evidence if they are assured of anonymity? Can you use their evidence in a disciplinary or grievance process?
The short answer is yes, witness statements obtained during a grievance or disciplinary procedure can be anonymised, but we would only ever recommend doing so when there is a good reason (see below). Whilst there is no legal requirement to disclose the identity of witnesses, a failure to do so is likely to prevent the employee from being able to properly challenge the evidence, and so could render a dismissal unfair. Using anonymous witness evidence should, therefore, be approached with a degree of caution.
When can you agree to anonymise witness evidence? The most obvious situation is where there is a genuine fear of reprisal, such as in cases of bullying and harassment. Some employers, however, prefer not to provide witness evidence in cases which are unlikely to end in dismissal. Understandably, those concerns usually revolve around the impact of seeing colleagues’ allegations and comments, which could jeopardise an employee’s ability to return to work with them, even if the charges are dropped. In reality withholding details on this basis is a risky approach, since principles of natural justice would dictate that the ‘accused’ is entitled to know the allegations against them and the identity of those making the allegations. Withholding the evidence or the identity of the witness can fatally undermine the fairness of the case for that reason and also because it can suggest an element of pre-determination of the case. If a tribunal claim did arise in the future, its fairness would be more difficult to defend on that basis. However, sometimes the commercial and practical considerations do outweigh the legal ones and so every situation should be approached based on its own facts – do ask us if you’re in doubt.
If your view is that anonymity is not justified but the witness evidence is important, the answer may be that a further discussion with the reluctant witness would alleviate their concerns about coming forward. Ultimately, an employer is entitled to insist on another employee providing evidence if it is reasonable to do so but, obviously, it is never ideal to have a ‘hostile’ witness, so a degree of diplomacy may get better results.
ACAS sensibly advises that, where an investigator decides that the circumstances do warrant agreeing to witness anonymity, interviews should be conducted and notes taken as if there is no requirement for anonymity. The investigator should then consider which points, if any, need to be omitted or redacted to prevent identification of the witness.
If anonymous evidence is to be used, it is worth considering whether to give it less weight than statements from named witnesses – in some cases you can disregard it completely if you have other reliable witnesses whose evidence can be more easily corroborated.
When it comes to preparing for a disciplinary hearing some practicalities will ensure that the ‘accused’ employee has a fair chance of challenging the evidence if they wish to do so. Always providing the evidence to the employee well in advance of the hearing, they should be invited to prepare written questions to be put to the anonymous witness. Those answers can then be provided to the employee in advance, thus allowing all parties a reasonable opportunity to examine the robustness of the evidence during the hearing.
It’s worth remembering when considering any type of evidence during an investigation that an employer does not have to prove a case ‘beyond reasonable doubt’. By taking sensible steps to test the reliability of any witness, an employer should be able to establish that they have followed a fair and reasonable process, thus reducing the risk of later successful claims of unfairness.
As always, please do contact us if you would like to discuss specific cases.