“An employee has disclosed misconduct about another employee and wishes to remain anonymous. Can they remain anonymous and how should I deal with this?”

An employer receiving such disclosures faces a difficult balancing act between the need to protect informants who might genuinely be in fear of reprisals and the need to give accused employees a fair hearing.

Anonymity

Anonymity in disciplinary proceedings is potentially problematic because it can hinder accused employees’ ability to effectively challenge the evidence against them. As matter of good practice, an employer should investigate why a witness wants anonymity and explore what can be done to persuade him/her to provide information openly.

Ideally, evidence in a disciplinary case is given openly. Where this is not possible, employers should have regard to the principles set out in Linfood Cash and Carry Ltd v Thomson [1989] IRLR 235:-

  • Informant’s statements should be reduced to writing (although they might need to be edited later to preserve anonymity) and made available to the employee with the alleged misconduct
  • In taking statements, it is important to note the date, time and place of each incident, the informant’s opportunity to observe clearly and accurately, circumstantial evidence, the reason for the informant’s presence or any small memorable details; and whether the informant had any reason to fabricate evidence
  • Further investigation should then take place, corroboration being clearly desirable
  • Tactful enquiries into the character and background of the informant would be advisable
  • A decision must then be taken whether to hold a disciplinary hearing, particularly when the employer is satisfied that the informant’s fear is genuine

An employer will generally be able to place greater reliance on statements from several anonymous informants, rather than just one. Corroboration is hugely important when a disclosure is entirely anonymous i.e. the informant’s identity is unknown even to the employer. As part of whistleblowing arrangements, many employers offer employees the option of reporting wrongdoing using an anonymous telephone hotline. Similarly, the internet provides a wide variety of means to provide information anonymously. The problem for employers who receive information in this way is that the motive and character of someone whose identity is unknown is a matter of speculation. If an employer has no other means of testing the truth of the allegations – such as factual corroborating evidence, or a witness statement from an employee – dismissal based on the anonymous tip-off alone runs a substantial risk of being found unfair.

Customers, suppliers and members of the public may come forward with relevant information about employee misconduct. The Court of Appeal in Leach v Office of Communications [2012] ICR 1269 held that the employer must assess for itself, as far as practicable, the reliability of what it has been told, by checking among other things, the integrity of the informant.

Comment

There is no general right to anonymity for employee informants. A failure to provide a witness with anonymity will only amount to a breach of contract if doing so is calculated or likely to damage the relationship of trust and confidence between employer and employee. If an employer provides an informant with an assurance that their identity will not be disclosed to the accused during disciplinary proceedings, this does not bind courts or tribunals exercising their power of disclosure. Thus, an employer cannot guarantee the informant anonymity in the event of subsequent legal proceedings.

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.