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Can an employer anonymise witness statements obtained during a grievance or disciplinary procedure?
- AuthorEmployment Team
Conducting disciplinary or grievance proceedings are a part of any HR or managerial role and it is vital that these are carried out fairly to avoid any potential Tribunal claims against you. If witness statements are required from the employee’s colleagues, they may feel uncomfortable providing this and so could ask to provide their account anonymously. Are you allowed to anonymise witness statements? What are the consequences if you choose to do so? Our Employment Team explore the answers here.
When an employee is subject to grievance or disciplinary proceedings, you should gather as much evidence during the investigation stage as you can to assist in making your decision. Witnesses may be reluctant to give evidence out of a fear of retaliation from the colleague under investigation, and may only agree to give evidence anonymously.
Whilst there is no legal requirement for witnesses to provide their identity, if they do not do so, it could undermine the employee’s right to challenge the evidence which has been presented against them. You are under a duty to carry out a fair disciplinary procedure and obtain reliable evidence; any evidence provided anonymously will be difficult to rely on. You should explore the reasons why the witness wishes to remain anonymous and decide whether or not their evidence should be disregarded or considered as less reliable than statements from named witnesses.
It is best practice to agree to anonymise a witness statement only in exceptional circumstances. You should check the validity of a witness, consider any reports of threatening behaviour against them, as well as the witness’ credibility and character, and if they would have any reason to stray from the truth.
An Employment Tribunal must assess the procedure leading to the dismissal, as well as if the decision to dismiss was fair in the first place; a finding of unfair dismissal could be made based on the witness statements you obtained. You should therefore explain to witnesses that any evidence they do provide will not result in them facing any repercussions or unfavourable treatment.
You should exercise caution when contemplating whether to accept evidence anonymously as the identity of a witness may be required by the Employment Tribunal.
If you are currently carrying out disciplinary action with an employee and have questions about whether you should allow an employee to anonymise a witness statement you can contact the Employment team on 023 8071 7717 or email firstname.lastname@example.org. If you are unsure about how to conduct a fair process when carrying out disciplinary or grievance proceedings, you may find our Employment Law Masterclass, Practice Makes Perfect, of benefit to you and your managers. Find out more about the event here or email email@example.com.
This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.