Case law: anonymity of witnesses in disciplinary proceedings

A recent decision offers useful guidance on the ability - or otherwise - of an employer to preserve the anonymity of an employee who provides evidence as part of a grievance investigation.

The claimant in this case made serious allegations to his employer against a number of his fellow employees, claiming, in effect, direct racial discrimination. Witness statements were given by eight named co-workers, and also by one who wished to remain anonymous 'for fear of reprisals' by the claimant. On the basis of these statements, the company dismissed the claimant's grievance. He then applied to the Employment Tribunal (ET), claiming unfair dismissal and a declaration of unlawful treatment on the grounds of race and/or religious belief.

While the ET considered that the anonymous statement should be disclosed on the basis of relevance to the grievance investigation, the Employment Appeal Tribunal (EAT) considered that the ET had applied the wrong test (ie of relevance), and should have considered instead whether disclosure was necessary for disposing fairly of the proceedings.

This case makes it clear that employers cannot fully guarantee the anonymity of employees who provide evidence, especially where the matter is heard by a tribunal, because the issue of whether the evidence, and identity of the employee, remains confidential is in the discretion of the tribunal.

Immediate