How to manage a reluctant witness in a grievance

What do you do if a witness to a workplace incident at the centre of a grievance wants to remain anonymous?  

Let’s imagine that an employee witnesses her junior colleague being harassed by a very senior manager.

She finds out her colleague had launched a formal grievance and she wants to help her, but she is scared that if she comes forward and describes what she saw, she may face some form of retribution from management, will be a victim of the same type of behaviour, put herself at the centre of gossip or be seen as a tell tale.

From a HR perspective, what can you do to manage the situation?

Acas guidance makes it clear that you should try to avoid anonymising witness statements whenever possible. It should be the exception, rather the rule.

In the rare situations where there are genuine and convincing reasons to warrant anonymity, you need to strike a tricky balance. On the one side, you will want to protect the witness, but on the other side, you need to consider the need for the alleged harasser to understand the allegations that have been made against them.

Here are some main points to remember:

Never promise anonymity

You should not make an ill-judged assurance that if they do come forward, their identity will never be revealed.

If the matter is escalated to an Employment Tribunal, it may be necessary to disclose information relating to the grievance.

Plus, in very small organisations, it may be fairly easy to ascertain who the witness was.

Investigate

You will need to investigate alleged misconduct, which will involve speaking to any witnesses to gather all the facts. Investigators should be skilled at exploring why the witness is reluctant, putting them at ease and resolving any concerns they have.

Check if their version of events is trustworthy

When you are speaking to the witness, it’s important to assess their credibility, corroborate their version with other witnesses, look out for any information that they are not being open about and explore if there are any underlying reason why they would lie or exaggerate the truth.

Remove identifying details

If you do allow anonymity, Acas guidance clearly states that interviews should be carried out and notes should be taken without regard to the need for anonymity.

You should take a written statement from the witness, which can be used in the disciplinary process. The copy that is given to others, such as the accused, should have any identifying details redacted so they cannot ascertain who the witness is.

If the accused raises some concerns which need to be referred to the witness during their disciplinary meeting, you should adjourn the meeting in order to make the necessary enquiries.

It’s a complex area, so if you are dealing with tricky grievances, seek legal advice at the earliest opportunity to get step by step guidance and support.

Director of Legal Services

James Tamm

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