As part of any investigation procedure the employer should be able to rely on anonymous witness statements to confirm any dishonest actions of the employee in question. In return the employer would vouch that the details of the anonymous witness would remain confidential. But what happens if disclosure is required?
Anonymity in the Asda Case
In the case of Asda Stores Ltd v Thomson and others, 2002, 3 ASDA managers were dismissed due to their involvement in supplying and using illegal drugs. ASDA management carried out an independent investigation and were able to rely on anonymous witness statements which confirmed drug taking. At the disciplinary hearing they were dismissed.
The managers claimed unfair dismissal and the case was taken to tribunal. The managers made an application for the disclosure of the witness statements as they had not seen it. Asda did not want to release these statements as the business promised to preserve anonymity, but this was overridden by the tribunal. The tribunal confirmed that the statements were necessary as part of the process.
Once in receipt of these statements, the employment tribunal was able to confirm that ASDA did follow the correct process and the dismissal was upheld. The tribunal concluded that it was impossible to promise anonymity given that the statements had to be addressed in order to give a relevant outcome.
Interestingly though, the EAT gave their thoughts to this matter and stated that the employment tribunal could have still protected and concealed the witness identity by a redrafted form.
Conclusion
What we can learn from this is the promise of anonymity could be difficult to maintain should some tribunals insist that statements must be disclosed as part of the bundle before giving a conclusion to the case. Other suggestions include to approach investigations in a different way so not to put the witness in a difficult position.
The article is for general information purposes only and should you require any further assistance on the matter please do not hesitate to call our advice-line team on 01455 852028.
