This month’s problem concerns:

We are in the process of carrying out a disciplinary investigation into sexual harassment complaints against a senior manager. A key witness does not wish to put their name on their statement because they are afraid that the senior manager will punish them in some way. How do I handle it?  

It is not uncommon for employees to ask to remain anonymous during workplace investigations, especially those involving serious or sensitive allegations like sexual harassment cases. This reluctance is often heightened when the complaints have been made against a manager or senior employee given the fear of reprisals.

It is important to distinguish between confidentiality and anonymity. All workplace investigations should be conducted confidentially, to avoid information spreading in the workplace or witnesses corroborating their evidence with one another. However, anonymity, where a witness’ identity is not disclosed to the relevant parties, should only be granted in exceptional cases. This is because the accused employee has a right to understand and challenge the evidence against them.

As a starting point, you should speak to the employee to find out what their concerns are and if you can offer any solution or reassurances. You should not promise anonymity but can reassure the employee that all workplace investigations are confidential and that all participants will be informed of their obligations not to discuss matters with others. You should reassure them that you will not tolerate any inappropriate conduct or reprisals towards them from either the complainant or the accused.

This may bring some comfort to the employee and they may agree to proceed. However, in exceptional circumstances you can consider granting anonymity.

The LRA’s advice on conducting workplace investigations states that anonymity should only be granted if the employee can reasonably demonstrate a “genuine fear of serious reprisal.” This is consistent with the equivalent guidance from ACAS in GB, which includes an example of an employee being subjected to intimidating behaviours to dissuade them from acting as a witness. In the case Ramsey v Walker Snack Foods Ltd, the EAT decided that the employer’s use of heavily edited statements during its investigation did not render the eventual dismissal unfair, because the employer had identified a clear and real risk of reprisals, meaning that without anonymity, it could not have carried out a meaningful investigation.

If, after speaking with the employee you are satisfied that there is a genuine fear of reprisals, then it may be appropriate to grant anonymity to ensure this witness’ cooperation. If you decide to grant anonymity, you should complete their statement / written meeting minutes as part of the investigation report as normal (i.e. including their name) but then redact their name and potential identifying details before issuing the report to the relevant parties. This means that you will have a central HR record of who provided the evidence.

You should also inform the employee that there may come a stage where anonymity must be waived, for example if the matter progresses to a tribunal claim. Investigation reports will almost always be disclosable, without redaction, and will be one of the key documents referred to by both sides.

On the other hand, if there is no genuine fear of reprisals, you should take a cautious approach towards granting anonymity given its potential impact on your carrying out a fair process, specifically around the credibility of the evidence gained in the investigation process. This may result in you deciding to either discount the employee’s evidence entirely or giving it much lesser weighting than other available evidence, which the accused is able to fully access and challenge. You should document your decision carefully.

If you do grant anonymity, you should still obtain a detailed account from the witness. Ideally, this will allow you to compare and corroborate their evidence with other witnesses who have not asked for anonymity. You should fully investigate the witness’ version of events, including sensitive enquiries into whether there are any character or background related reasons to question the information they have provided.

This will allow the investigator to consider the weight they can give to the anonymous evidence. Ideally, the anonymous evidence will be supported by other witnesses, documents or admissions from the accused. The more weight that is put on anonymous evidence, especially evidence, which is pivotal or not corroborated, the higher the risk that the accused will later allege that the disciplinary process was unfair, as part of an unfair dismissal claim.

Ultimately, what you decide to do next will involve balancing the witness’ concerns against the accused’s right to know the case against them, in line with your overarching duty to carry out a fair and investigation.