Example cases:
In Turnbull v Mecca Bingo Ltd (EAT), the employee (T) was provided with a broad outline of the allegations against her but was not given details of incidents or the name of the witness. The incidents were of an extremely serious violent and physical character and the witness had been unwilling to make a statement to the employer or the police. There were other witnesses who also refused to provide statements due to the climate of fear. The employee was dismissed for gross misconduct. The EAT held that there were exceptional circumstances which justified withholding identity of witnesses and that it was reasonable for the employer to believe that T (and her associates) might inflict retribution if she found out who made the complaints against her.
Linfood Cash & Carry Limited v Thompson provides guidance on the need to balance between a fair hearing for the employee and protecting the anonymity of witnesses. Witnesses’ statements should be reduced to writing and the following should be noted:
- the date, time and place of each observation or incident;
- the witnesses’ opportunity to observe clearly and accurately;
- any circumstantial evidence such as knowledge of a system;
- the reason for the informant’s presence;
- any memorable small details; and
- whether the witness had any reason to fabricate evidence.
The Acas guide on ‘How to handle reluctant witnesses in investigations’ advises that once it has been agreed that a witness can talk anonymously, the interview should be conducted in the normal way. However, an investigator should consider what might need to be removed or redacted to prevent identification afterwards. They advise that anonymity should be avoided as it is likely to put the employee under investigation at a disadvantage.
For more information regarding anonymity of witness statements, please contact Katie Hodson on 0161 475 7670 or email katie.hodson@sasdaniels.co.uk.
Example cases:
In Turnbull v Mecca Bingo Ltd (EAT), the employee (T) was provided with a broad outline of the allegations against her but was not given details of incidents or the name of the witness. The incidents were of an extremely serious violent and physical character and the witness had been unwilling to make a statement to the employer or the police. There were other witnesses who also refused to provide statements due to the climate of fear. The employee was dismissed for gross misconduct. The EAT held that there were exceptional circumstances which justified withholding identity of witnesses and that it was reasonable for the employer to believe that T (and her associates) might inflict retribution if she found out who made the complaints against her.
Linfood Cash & Carry Limited v Thompson provides guidance on the need to balance between a fair hearing for the employee and protecting the anonymity of witnesses. Witnesses’ statements should be reduced to writing and the following should be noted:
- the date, time and place of each observation or incident;
- the witnesses’ opportunity to observe clearly and accurately;
- any circumstantial evidence such as knowledge of a system;
- the reason for the informant’s presence;
- any memorable small details; and
- whether the witness had any reason to fabricate evidence.
The Acas guide on ‘How to handle reluctant witnesses in investigations’ advises that once it has been agreed that a witness can talk anonymously, the interview should be conducted in the normal way. However, an investigator should consider what might need to be removed or redacted to prevent identification afterwards. They advise that anonymity should be avoided as it is likely to put the employee under investigation at a disadvantage.
For more information regarding anonymity of witness statements, please contact Katie Hodson on 0161 475 7670 or email katie.hodson@sasdaniels.co.uk.