Use of Anonymous Witnesses in Disciplinary Hearings

In Tai Tarian Limited v Howell Wyn Christie, the Claimant (a carpenter) was dismissed by his employer following an anonymous complaint that he had made homophobic comments during a visit to a client’s property.

The ET found the dismissal was unfair, holding the employer did not have a genuine belief in the Claimant’s guilt.  It highlighted, in particular, that the dismissing officer and appeal officer  had not actually met with the complainant and that the complainant had refused to provide further information when asked to do so.  Further, the Claimant, who had 14 years’ service, had no history of similar conduct and had provided a number of character references including one from a longstanding homosexual friend of his. The Tribunal found that it was unreasonable for the employer to believe the tenant over the employer in these circumstances and that it was more likely that the woman who made the anonymous complaint had “embellished” her account.  It was noted that the Claimant had suffered a serious injury whilst at the complainant’s property which could have given her cause to embellish such a story.

During the investigation, the employer had refused to provide the complainant’s identity to the Claimant.  The ET found that it may be reasonable to withhold the identity of a complainant but that, in such circumstances, the employer should take steps to ensure a fair hearing which involves having some means to test the complainant’s account. The employer had taken the wrong stance in this case, accepting the complainant’s view from the outset and expecting the employee to prove his innocence.  It said it is even more important for an employer to look for evidence of innocence (including considering why the complainant might have cause to embellish her account) as well as misconduct when a complainant remains anonymous.

The EAT however remitted the case for re-hearing, finding the ET had substituted its view of the complainant’s credibility for the employer’s. Despite this, the EAT found the ET had made some valid criticisms of the employer’s procedure.  This included the fact that the employer had refused to provide redacted notes from both of the witness’ interviews and that the employer had failed to consider why there was a delay in the complainant making the initial allegations.