21 September, 2020
A dismissal based on anonymous witness evidence will not necessary be unfair, even where that witness declines to participate in the disciplinary process.
The Respondent was a housing association, who employed the Claimant as a carpenter. The Claimant was dismissed after a tenant alleged that the Claimant had made homophobic comments to her. The tenant was interviewed by two managers but requested anonymity and was not interviewed by the decision-making managers.
The Tribunal concluded that the dismissal was unfair as it was outside the range of reasonable responses for the Respondent to rely on an anonymous account and fail to take other steps to ensure the Claimant had a fair hearing.
The EAT held that the Tribunal's findings on the question of fairness were unsafe. It concluded that the tribunal had not met the test of demonstrating any good reason for its conclusion that the Respondent could not have reasonably accepted the tenant's evidence as truthful. Here the witness gave interviews at investigation stage, was not invited to the disciplinary hearing and only declined to give evidence at the appeal stage due to personal circumstances.
This case emphasises the importance of interviewing all potential witnesses, even where they do not wish to be identified or participate in the disciplinary process. This might be particularly relevant in similar situations to this case, where the witness is a tenant and therefore may not be able to take part in the disciplinary process due to work commitments or personal circumstances.
This case also shows the risks involved with anonymous witnesses. Whilst in some circumstances anonymous evidence may be used, an employer should always consider the rationale behind the request to remain anonymous and balance this against any potential prejudice this may cause the employee.
This decision in this case was made by the EAT, sitting in Scotland, who found that in some circumstances an employee can be fairly dismissed without using a fair procedure where there is a breakdown in working relations.
The Claimant was a senior manager in the Respondent's business. Her relationship with her line manager deteriorated at a critical business juncture for the Respondent, meaning the mutual trust and confidence had broken down between the Claimant and her line manager. The Claimant's manager decided, after consulting with HR, to dismiss her at an appraisal meeting having conducted no procedure, provided the Claimant with prior warning or affording her a right of appeal.
The Tribunal found the dismissal to be fair and suggested the decision to dismiss, without any procedure was within the band of reasonable responses. It was decided that, in these particular circumstances, conducting a formal procedure would have made the situation worse.
The EAT noted the unusual circumstances of the case but declined to overturn the Tribunal's decision. They confirmed there may be instances, though rare, where procedures may be disregarded because they are reasonably considered by the employer to be futile in the circumstances. The Tribunal had found that the working relationship had broken down amongst both parties.
The EAT went on to explain that there is no specific rule of law confirming that the absence of any procedure renders a dismissal unfair, however, all the circumstances of the case have to be taken into account. The EAT did note that extra caution must be taken by a Tribunal, in deciding on dismissals that have taken place without any procedure, when considering whether these fall into the band of reasonable responses.
This case should be viewed as the exception rather than the rule, and at the very least an employer should meet with the employee to talk to them about their situation before dismissing for a relationship breakdown. However, it may come as welcome news to some organisations that in circumstances where an employee, and specifically a member of the management team, has behaved particularly badly, it may be easier to make the argument that a working relationship has irretrievably broken down.
For more information contact James Barron in our Housing & Regeneration department via email or phone on 0161 918 0017. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
Learn more about our Housing & Regeneration department here