Workplace investigations are stressful processes for all involved. As such, despite legal protection against victimisation or retaliation, certain individuals may wish to remain anonymous during the process. For example, the Financial Conduct Authority (FCA) reported that in Q3 of 2022 around 38 per cent of all whistle-blowers opted to remain anonymous.
Motivations for seeking anonymity can vary. There could be a fear of reprisals from the subject of complaint; a fear that “tattling” would lead to a deterioration of their working relationships or career prospects. In sexual harassment cases, the details may be traumatic or embarrassing for a witness to recount. Regardless of the reason, investigators need to ensure the fairness of the process for the subject of complaint, the welfare of all the participants and the impact on any future litigation.
This article covers key questions investigators and HR professionals need to consider when faced with a request for anonymity.
What does anonymity mean? How does it differ from confidentiality?
While used interchangeably in ordinary life, these are two distinct concepts that should not be conflated.
- Confidentiality means that the identity and facts of the matters under investigation and the fact of and process of the investigation will be kept on a “need to know” basis.
- In contrast, anonymity is where the identity of the complainant and / or supporting witnesses is not revealed to those participating in the investigation.
In other words, confidentiality means the identities of participants will not be shared more widely than necessary, while anonymity means they will not be shared at all.
When are confidentiality and anonymity appropriate to apply in an investigation?
All workplace investigations should be confidential. This should be clearly communicated to participants. This is to:
- Avoid any harmful gossip about the subject of complaint which may lead to a deterioration of the individual’s working relationships or mental health, and
- Ensure that witnesses do not corroborate their evidence which would harm the fairness of the process for the subject of complaint.
If confidentiality is not managed well, it can give rise to additional legal and employee relations risks, particularly from the complainant and subject of complaint, but also potentially more widely.
To ensure confidentiality, participants in an investigation should be clear about who they can and cannot speak to about the investigation (eg an employee representative, line manager, legal counsel, GP or family member).
- By contrast, anonymity should be the exception rather than the rule. The ACAS Guide on Conducting workplace investigations (“the ACAS Code”) recommends that anonymity should only apply in exceptional circumstances where the participant has a “genuine fear of reprisals”. The ACAS Code gives an example of employees who wish to remain anonymous which the investigator grants after discovering several reports of intimidation by the subject of complaint. For example, in Ramsey v Walkers Snack Foods Ltd, the EAT held that a dismissal based on heavily edited statements to ensure anonymity was fair. It noted that the participants worked in a close-knit community where there was a very real risk of reprisals; if it had not offered anonymity, the investigator would not have received any information.
A witness has asked to remain anonymous – what should I do?
- Do not promise anonymity.
- Consider whether the participant has a genuine fear of reprisals. This decision should be documented carefully with any supporting evidence.
- The EAT in Linfood Cash & Carry v Thompson suggested that when a witness wants to remain anonymous, their statement should be taken in as much detail as possible and the evidence should be corroborated. Further, “tactful” character and background enquiries may be appropriate to assess the value of the information provided.
- The ACAS Guide recommends that interview notes are taken without the need for anonymisation. The investigator should take the view after the meeting as to whether any redactions ought to be made.
Investigators should aim to balance any considerations of anonymity with fairness to the subject of complaint. The principles of natural justice, insofar as they apply to disciplinary investigations, mean that the subject of the complaint ought to be able to understand and respond to the allegations against them.
By way of illustrative example, in the case of ACAS v Woods the Claimant was investigated for numerous allegations of sexual harassment towards younger female colleagues. While the employer was ultimately justified in dismissing the Claimant, the Tribunal was extremely critical of the investigation process, particularly their approach to anonymisation. Specifically, the Tribunal noted:
- The investigators presumed that witness evidence would be anonymous and guaranteed it, even though some participants had waived anonymity,
- No participant had expressed a fear of reprisals (and, in fact, the investigators did not explore whether there was such a fear), and
- The approach went beyond the employer’s own policy and guidance.
The anonymisation meant the Claimant was at a disadvantage and unable to offer rebuttal or contextual evidence in relation to certain complaints. Moreover, the investigators relied on the Claimant’s partial or delayed recall of events as a factor which undermined his credibility. Even though they noted the impact anonymisation would have on his ability to recall events, they did not give it appropriate weight in their decision. Procedurally, therefore, the dismissal was unfair.
Why can I not guarantee anonymity?
Even if the individual has a genuine fear of reprisals, and the investigator has done all that is possible to mitigate any unfairness to the subject of complaint, there may still be instances where the investigator has to disclose documents in their possession which would trump the concerns of anonymity.
Investigation reports (and, in particular, the witness interviews) are usually unlikely to attract the protection of legal advice or litigation privilege, even where carried out by a qualified legal professional. In limited circumstances it may be possible to conduct a privileged investigation, but the reality of workplace investigations is that the employer will most likely want the investigation to be on the record and able to be produced as evidence. As such, the investigation report would be disclosable:
- If required by a regulatory body,
- If the subject of complaint brings a Data Subject Access Request,
- If the matter progresses to litigation, a tribunal or court may order that an unredacted version of the report and any appendices are provided.
In an extreme case, an employer’s commitment to anonymity may lead to a civil claim for damages. In P v T Ltd, a third party made allegations of gross misconduct against the employee (P). Following a disciplinary hearing in which he was not given particulars about the allegations against him, he was (following a Tribunal decision) unfairly dismissed. P struggled to disprove unknown allegations, his reputation was destroyed, and he struggled to find alternative employment. The High Court made an order to the employer to disclose the name of the individual. The Court noted it was “intolerable” that an individual could be stained by serious allegations and could not invoke the law to defend their reputation.
Practical take aways
- Ensure witnesses are clear on requirements of confidentiality. Ensure the subject of complaint and all participants are aware that allegations of victimisation or retaliation will be treated seriously and may lead to further disciplinary action.
- Investigators should not be pre-disposed to a particular outcome on anonymity. The need for anonymity should be scrutinised, and any decision regarding anonymity should be documented contemporaneously and carefully.
- Review any decision on anonymity in light of new evidence. Investigators should ensure that the subject of complaint is given a fair opportunity to respond to the allegations before them.
With thanks to Alex Evans, a paralegal in the employment team, for contributing to this article.
If you require further information about anything covered in this article, please contact Charmaine Pollock or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law as at the date of publication. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, March 2023