The Employment Appeal Tribunal (EAT) in Tai Tarian v Christie has recently held that it is not necessarily unfair for an employer to dismiss an employee based on the evidence of an anonymous witness.
Mr Christie, the Claimant worked for Tai Tarian, a housing association in Wales for over 14 years. He was dismissed after a tenant (“T”) informed Tai Tarian that Mr Christie had made homophobic comments while carrying out work in her property. T was interviewed twice but not by the relevant decision makers. She wished to remain anonymous due to suffering from anxiety and when asked to provide further evidence at the appeal stage she refused due to her personal circumstances.
The Tribunal after considering the evidence found Mr Christie not to be homophobic and inferred from this that it was not possible for Tai Tarian to establish a genuine belief that he was guilty of misconduct. The Tribunal considered it to be unreasonable for Tai Tarian to have accepted T’s account when she refused to provide further evidence and therefore found it unreasonable to dismiss Mr Christie on this basis.
The EAT allowed the appeal. The EAT found that the Tribunal had failed to explain why it rejected Tai Tarian’s evidence of its belief in Mr Christie’s misconduct and wrongly inferred that in accepting Mr Christie was not homophobic, the decision makers could not have genuinely believed that Mr Christie had made the homophobic comments.
In assessing the Tribunal’s decision on fairness, the EAT found that the Tribunal had misapplied the case of Linfood Cash and Carry v Thomson and others (Linfood) which provides guidelines to assist employers and Tribunals in balancing the need for a fair hearing with the protection of witnesses and informants. It was held that the Tribunal wrongly concluded that it had been outside of the band of reasonable responses for an employer to rely on the evidence of an anonymous witness and considered there to be no logical or substantial ground for concluding that T’s evidence was not truthful. Further, the EAT found that the Tribunal had erred in concluding that T had refused to give further evidence when she had only been asked once at the appeal stage and declined due to personal circumstances.
The EAT therefore rendered the decision on fairness to be unsafe and remitted the matter to a different Tribunal for re-hearing.
Witness evidence is often crucial when investigating grievances and cases of misconduct. Where a witness requests anonymity, employers should investigate the reason and motive behind their request. This is because the Tribunal will scrutinise the reasonableness of the employer in relying on such evidence if they subsequently decide to dismiss. Employers should therefore carry out a balancing act between the perceived need for the witness to remain anonymous and the need for the employee to know the details of the case against them. Closely following the guidelines in Linfood will protect an employer against the accusation that they acted unreasonably in relying on anonymous witness testimony. This includes actions such as investigating the credibility of the witness, determining the weight of their statement and corroborating their evidence.
If you would like further advice on how to handle reluctant witnesses or would like to know more about the guidelines referred to above, please contact a member of the team.