Case update: Tai Tarian Limited v Howell Wyn Christie
In what circumstances can an employer rely on anonymous statements during disciplinary investigations? The Employment Appeal Tribunal (EAT) considered this in the recent case of Tai Tarian Limited v Howell Wyn Christie.
The Claimant, Mr Christie, was employed as a carpenter for the Respondent (a housing association) for 14 years. One of the Respondent’s tenants complained that Mr Christie had made homophobic remarks whilst carrying out maintenance work in one of their properties. Two interviews were subsequently held with the tenant, who requested anonymity as she suffered from anxiety. A disciplinary hearing followed and the decision was taken to dismiss Mr Christie for misconduct. The decision-making managers were not able to interview the tenant – this was requested once at the appeal stage but the tenant refused for personal reasons.
Mr Christie raised a claim for unfair dismissal, alleging that the dismissal process was unfair because of the reliance on the evidence of an anonymous witness. The Employment Tribunal (ET) upheld the his claim, finding that the investigation was unreasonable and the decision to dismiss “based solely upon the complaint of an anonymous tenant…fell beyond the band of reasonable responses open to a reasonable employer of a similar size and with similar administrative resources.” The ET held that it was also unreasonable for the Respondent to have relied on the anonymous account and preferred that evidence when the tenant had not been interviewed by either of the relevant decision-makers and had refused to provide any additional information.
The Respondent appealed this decision and the EAT allowed the appeal. The EAT found that the tribunal had erred in its findings on the question of fairness. It concluded that the ET had not demonstrated any “logical and substantial grounds” for its conclusion that the Respondent could not have reasonably accepted the tenant’s evidence as truthful. In the circumstances, it was within the band of reasonable responses for an employer to preserve the anonymity of the tenant. Further it was not the case that the tenant had refused to provide additional evidence, she had simply declined to provide evidence on the one occasion she was asked. The case has been remitted to a different tribunal for re-hearing.
Although the witness in this case was a tenant, a more common scenario is where a witness is a colleague of the employee under investigation and will only provide information if they are first given anonymity. The cases on this issue are clear that anonymity does not necessarily make a dismissal unfair but the employer must balance the need to protect the identity of the witness with the need to provide a fair hearing for the employee under investigation. Acas (in its Conducting Workplace Investigations guidance) advises that anonymity should be avoided where possible, as it is likely to put the investigated employee at a disadvantage. The guidance says an investigator should only consider anonymising witness statements where the witness has a genuine fear of retaliation. While this case acts as a reminder that there are limited circumstances in which it will be reasonable for an employer to withhold the identity of witnesses, employers looking to do so should still proceed with caution.