EAT clarifies rules on anonymous witnesses in disciplinary proceedings

The EAT (Mrs Justice Eady) has clarified the rules about when employers will be allowed to rely on anonymous witnesses when dismissing, in Tai Tarian Limited v Howell Wyn Christie UKEAT/0059/19/VP.

The Claimant worked for a housing association and was accused of making homophobic remarks to a tenant of one of his employer’s properties. The tenant gave two interviews to investigating managers, but declined to give further evidence to the dismissing manager. The tenant gave her evidence on the requirement of anonymity. The Claimant was dismissed and the Employment Tribunal found the dismissal was unfair, because the Respondent could not have reasonably accepted the Claimant’s evidence as truthful considering a discrepancy between the two interviews she gave.

The Employment Appeal Tribunal noted that whether or not relying on an anonymous witness is within the band of reasonable responses is fact specific. Mrs Justice Eady noted that, before an Employment Tribunal can decide that an employer should have disbelieved an anonymous witness, they must show “logical and substantial grounds” to explain why that was the case.

The EAT decided that the Employment Tribunal had decided what it would have done, and failed to apply the band of reasonable responses test.