Ask the Expert - Asking For Evidence To Remain Anonymous

Each month we will be asking a question on a hot topic to one of our employment specialists. This month, Tessa Robinson, Senior Associate considers what happens when an employee asks for their evidence to remain anonymous in an internal grievance, whistleblowing or disciplinary process.

“Over the past few months, we have had several internal grievance whistleblowing and disciplinary investigations take place where our employees have been willing to provide evidence, but only if it is kept anonymous. Do they have the right to request this? Do you have any advice on how we can handle these requests?

The starting point should be that obtaining evidence to an investigation is crucial, particularly where it relates to a situation where they will not be any documentary evidence.

As a starting point, it is advisable to have a discussion with the witness who has made the request to understand their reasons for the anonymity request. In a disciplinary. an employee has a right to know the details of the evidence gathered in the investigation, both for and against them, so they can adequately challenge that evidence. 

Generally, the position is that an individual would need to have a genuine, and realistic, fear of reprisal and evidence that the evidence would not have been provided had anonymity not been afforded to that witness. This is obviously only going to apply in quite narrow circumstances. By having a discussion with the employee, it may be that you can ease the reluctant witnesses concerns.

In wider cases of whistleblowing investigations and/or some grievances, anonymity may be easier to provide to a witness – as it may not impact on an individual’s right to challenge evidence in a disciplinary process.

Thought should also be provided as to whether an employer can genuinely make an assurance of anonymity, or whether the evidence can obviously be attributed to a certain individual.

Case law has set out considerations employers should take when faced with requests for anonymity, these include:

• Inputting the witness information into one or more statements and reviewing statements to erase any parts that may identify the witness albeit the initial statement should be taken as one statement and these two changes implemented later before showing the statement(s) to anyone else;
• Considering whether the witness has suffered at the hands of the accused;
• Corroborating the witness evidence so that there is, ideally, evidence that is not put forward by an anonymous witness which may be open to challenge; and
• Whether the evidence is crucial to the process, and if they refused to provide evidence, the process would be able to continue (important in cases of disciplinary)

It can be tricky for employers to deal with requests for anonymity, but by making early enquiries as to the motive for this request, and implementing careful strategies to genuinely protect the individual as far as reasonably possible, interests for all parties can usually be balanced.