Speaking to witnesses is the bread and butter of our jobs. But what if a witness is reluctant or refuses to give evidence or assist with an investigation? Can you force them or offer to keep their evidence anonymous?
If a witness fears reprisal for becoming involved in the investigation, it is possible to allow the evidence to be provided anonymously, but it is by no means set in stone. If the matter proceeds to ET, it could be tested as appropriate by the Judge in court. Initially, you should find out the reason why the witness does not want to assist and see if there is a way to resolve the issue. If not, anonymity may be the answer.
This is the best or rather only reason you should offer anonymity.
The Acas investigations guide states that "only in exceptional circumstances where a witness has a genuine fear of reprisals should an investigator agree that a witness statement is anonymised." (Page 24.)
The guide goes on to explain that, in a disciplinary context, this is because it is likely to disadvantage the employee under investigation who will not be able to effectively challenge the evidence against them. This may apply equally in grievance situations as grievances are often about something another employee has done, or failed to do, and may result in disciplinary action being taken against another employee.
It is best practice, wherever possible, to encourage witnesses to come forward and give statements. Only in exceptional circumstances will anonymised witness statements be appropriate. Note always, if the matter does proceed to court, you may be required by the tribunal to disclose the names of the anonymous witnesses – so they won’t be anonymous anymore! Correspondence with the witness in question should highlight this possibility early in the process.
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Partners Employment Lawyers is not a firm of solicitors. Members or Partners Employment Lawyers are consultants at Excello Law Limited and legal services are provided by Excello Law Limited which is authorised and regulated by the Solicitors Regulation Authority under SRA number 512898 https://excellolaw.co.uk/