Employment Law Cases
Witness anonymity and unfair dismissal
Tai Tarian Ltd v Christie
A dismissal based on anonymous witness evidence will not necessarily be unfair, even where that witness declines to participate in the disciplinary process.
Mr Christie had worked for 14 years as a carpenter for Tai Tarian Ltd (TT), a housing association, and had an unblemished disciplinary record. After a tenant complained that he had made homophobic comments he was summarily dismissed for gross misconduct. The tenant, who suffered from anxiety, was interviewed by two managers during the investigation phase but given that she was a tenant in one of TT’s buildings, had asked for anonymity and was not interviewed by the decision-making managers. She was unable to attend the appeal for personal reasons. Mr Christie was not told of her identity.
Mr Christie’s unfair dismissal claim was upheld by a tribunal. It accepted that a reasonable employer might have kept the identity of the witness anonymous, but it was outside a band of reasonable responses not to ensure a fair hearing took place. Neither of the managers who dealt with the matter had met her and the tribunal characterised her non-attendance at the appeal as a ‘refusal’ to attend. There had been no attempt to look for inconsistencies in her complaint or for reasons why the witness may have wanted to embellish her account. The managers’ acceptance of her word over Mr Christie’s was unreasonable in the circumstances. In the light of glowing character references, including from a gay friend, the tribunal found it highly unlikely that Mr Christie would have made the comments alleged. His dismissal therefore fell outside the band of reasonable responses open to the employer. TT appealed.
The appeal was allowed.
The tribunal had relied on the fact that TT had accepted that Mr Christie was not actually homophobic and concluded that it could not have therefore believed that he had said what he was accused of saying. The EAT held that this was clearly wrong and was no basis for finding that TT had not believed that the comments had indeed been made. The tribunal had in effect substituted its own view.
While the tribunal had been entitled to criticise TT for not allowing Mr Christie to see the full notes (suitably redacted) of evidence taken from the anonymous witness, it had not explained why it was unreasonable for TT to accept her account. Referring to the guidance given by the EAT in the 1989 case of Linfood Cash and Carry v Thomson, the EAT said that there needed to be logical and substantial grounds for finding that TT could not reasonably accept the evidence of an anonymous witness as truthful. Here the witness gave two interviews at investigation stage, wasn’t invited to the disciplinary hearing, and only declined to give evidence at the appeal stage due to personal circumstances. The tribunal had not properly set out why it was outside the range of reasonable responses to rely on her – and the case was sent back for rehearing by a different tribunal.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0059_19_0303.html
Anonymous witnesses are always difficult, but this case emphasises why it is not the end of the world if witnesses do not want, for good reason, to be identified. However, employers must ensure that they are not just looking for information about an employee’s guilt but are looking for reasons to prove their innocence as well. So, if they are not picking up issues such as inconsistencies in witness statements that the dismissed employee has not actually seen, and considered motives for those inconsistencies, then they run the risk that this will be outside the band of reasonable responses.