The key difference in an anonymous complaint is that the following balancing exercise is also required;

•    The employer should scrutinise the informant’s reason for wanting to remain anonymous to strike a balance between “the desirability to protect informants who are genuinely in fear and providing a fair hearing of issues for employees who are accused of misconduct.” (Mr N Ramsey v Walkers Snacks Food Limited, UK EAT/0601/03/MAA).

Perhaps, easier said than done.

In short, it is possible to proceed with an investigation based on an anonymous complainant/informant or if some of the information is redacted.

Anonymous complaints can be made by fellow employees or members of the public or third parties (e.g. service users).  As the EAT in Ramsey stated “There is always the risk that the anonymous informant is seeking to hide his untruthfulness underneath the veil of anonymity and is seeking to use that veil as a pretence for not being further examined by other managers within the organisation. Any anonymous witness will limit the ability of the accused to meet allegations made by unidentified people and in very general terms.”

Dealing with anonymous disclosures can therefore be problematic in a practical sense as the employer may not be able to follow up on the information or because the employer doesn’t have enough detail to proceed with an investigation. However, if no or insufficient action has been taken, this may lead to the person (if a whistleblower) making a wider disclosure under S67G of Employment Rights NI Order or additional accusations of concealment.  

Some employer’s policies permit anonymous complaints, for example, in their whistleblowing policy. It may that the whistleblower's identity should only be kept confidential until such time as there is a good to disclose their identity.

Proceeding with anonymous information also opens up the risk that the employee will say that the anonymous nature of the complainant or the redactions, prevent them from properly defending themselves against any allegations.

The employer should warn an anonymous complainant or informant that they may be identifiable by the information they provide notwithstanding their name is withheld.

LRA guidance 

The LRA “Advice on handling discipline and grievances at work”, November 2016 states;

“Be careful when dealing with evidence from someone who wants to stay anonymous. Take written statements, get evidence to support the statements and check that the person’s motives are genuine. Tell them that if the matter goes to an external hearing, you cannot guarantee that their identity will not be revealed.”

Case law

The England and Wales case law suggests that if “the fears of witnesses, whether or not justified in the absolute sense, are real, and the concerns of the Respondent are real...” (Asda Stores Ltd v Thompson [2004] IRLR 598) then anonymisation in an internal disciplinary proceedings and also legal proceedings are likely to be justified.

The original case dealing with protecting the identity of informants, is Linfood Cash and Carry Ltd v Thompson [1989] IRLR 235 (EAT) in which Wood P set out some guidance to employers faced with balancing the need to protect informants who are genuinely in fear of reprisals and, on the other hand, giving the employee accused of misconduct a fair hearing, which involves knowing the nature of the case against him.

In Linfood, the EAT provided helpful practical guidance, which should be followed in all cases;

1. The information should put into writing in one or more statements, with the statement being anonymised or redacted only before being sent on. 
   
2. In taking statements the following seem important: (a) date, time and place of each or any observation or incident; (b) the opportunity and ability to observe clearly and with accuracy; (c) the circumstantial evidence such as knowledge of a system, or the reason for the presence of the informer and why certain small details are memorable; (d) whether the informant has suffered at the hands of the accused or has any other reason to fabricate, whether from personal grudge or any other reason or principle. 
   
3. Further investigation can then take place either to confirm or undermine the information given. Corroboration is clearly desirable. 
   
4. Tactful inquiries should be made into the character and background of the informant or any other information which may tend to add or detract from the value of the information. 
   
5. If the informant is not prepared to attend a disciplinary hearing and the employer is satisfied that the fear is genuine; then a decision will need to be made whether or not to continue with the disciplinary process. 
   
6. Those conducting the hearing should interview the informant to satisfy themselves of the weight is to be given to the information provided. 
   
7. The informant’s written statement (redacted if need be) should be made available to the employee and his representatives. 
   
8. If the employee or his representatives raise any issues, then an adjournment may be required, to make further inquiries.  
   
9. Full and careful notes should be taken in these cases. 
   
10. If evidence from an investigating officer is to be taken at a hearing it should, where possible, be prepared in a written form. 
    
    The case of Surrey County Council v Doug Henderson UKEAT/0326/05; paras 29 & 31 dealt with the confidentiality of complainants. The EAT overturned the ET’s decision that it was an unfair dismissal as “the Tribunal…concluded that failure to provide the Claimant with details of the serious allegations made against him and a "rush to judgment" led to a "profoundly unfair dismissal”…The correct approach, based on binding authority, in our view, required the Tribunal to make clear findings as to the extent of the Respondent's investigation into the reasons why the complainants insisted on anonymity and then to carry out the balancing act between the Respondent's perceived need to protect the identity of the complainants and the natural justice requirement that the Claimant should know sufficiently the nature of the case against him, applying the band of reasonable responses test.”

The nature of the investigation

If the investigation is about an employee’s potential conduct, the employment (or industrial tribunal) will ask whether the outcome fell within the `band of reasonable responses' test, laid down in Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and if the decision is in the line with the Burchell Test British Home Stores Ltd v. Burchell [1978] IRLR 379  i.e.

a.    Did the employer believe that the employee had committed the acts alleged; 
b.    whether or not there were reasonable grounds to sustain that belief; and 
c.    whether the employer had carried out a reasonable investigation

The 2020 EAT decision of Tai Tarian Ltd v Howell Wyn Christie: UKEAT/0059/19/VP found that a dismissal based on the account of a tenant who withheld their name was a fair dismissal. The EAT overturned the Tribunal decision, as the ET had failed to explain why it rejected the evidence given as to the decision-taker’s stated belief in the Claimant’s misconduct.

In Tai Tarian, the EAT reiterated the point made in Linfood which was that “If a Tribunal is to say that this employer could not reasonably have accepted [an anonymous] witness as truthful, it seems to us that that decision [of the Tribunal] must be based upon logical and substantial grounds – good reasons.”

Employers should also bear in mind the guidance in Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, a case involving a registered professional that, where dismissal was likely to have a profound effect on the employee such as the loss of their livelihood, an employer must perform the disciplinary investigation with extra care.

Conclusion

If the 10 point guidance in Linfood is followed, then the employer’s actions should stand up to scrutiny at any subsequent Tribunal proceedings.