One employee had informed his employer that a fellow employee had stolen two books of credit notes. He refused to allow his identity to be disclosed for fear of reprisals. The Tribunal had held that the dismissal was unfair because although the employers had a genuine belief in the employee’s guilt they had no reasonable ground for that belief and had not carried out as much investigation into the matter as was reasonable in all the circumstances; and in particular considered that in the absence of any corroborative evidence, a most stringent enquiry should have been made by management to ascertain that the informant was not actuated by improper motives.
Held: The employer’s appeal was dismissed. Wood P said that when assessing credibility: ‘the tribunal must not substitute their own view for the view of the employer, and thus they should be putting to themselves the question – could this employer acting reasonably and fairly in these circumstances properly accept the facts and opinions which it did? The evidence given is that given during the disciplinary procedures and not that which is given before the Tribunal. If a Tribunal is to say that this employer could not reasonably have accepted a witness as truthful, it seems to us that this decision must be based on logical and substantial grounds – good reasons.’
The court set out a checklist to be used in assessing the reliability of an anonymous informant witness. ‘We have been told by both sides that there seems to be no decision of this court giving guidance upon appropriate procedures for an employer to adopt where informants are involved. It is obvious that from whichever side of industry one looks it is important that dishonesty and lack of trust should, where possible, be eliminated, but a careful balance must be maintained 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. We are told that there is no clear guidance to be found from ACAS publications, and the lay members of this court have given me the benefit of their wide experience.
Every case must depend upon its own facts, and circumstances may vary widely – indeed with further experience other aspects may demonstrate themselves – but we hope that the following comments may prove to be of assistance:
- 1. The information given by the informant should be reduced into writing in one or more statements. Initially these statements should be taken without regard to the fact that in those cases where anonymity is to be preserved, it may subsequently prove to be necessary to omit or erase certain parts of the statements before submission to others – in order to prevent identification.
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 may well be thought suitable and advisable 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 prepared to attend a disciplinary hearing, no problem with arise, but if, as in the present case, 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. If it is to continue, then it seems to us desirable that at each stage of those procedures the member of management responsible for that hearing should himself interview the informant and satisfy himself that weight is to be given to the information.
7. The written statement of the informant – if necessary with omissions to avoid identification – should be made available to the employee and his representatives.
8. If the employee or his representative raises any particular and relevant issue which should be put to the informant, then it may be desirable to adjourn for the chairman to make further inquiries of that informant.
9. Although it is always desirable for notes to be taken during disciplinary procedures, it seems to us to be particularly important that full and careful notes should be taken in these cases.
10. Although not peculiar to cases where informants have been the cause for the initiation of an investigation, it seems to us important that if evidence from an investigating officer is to be taken at a hearing it should, where possible, be prepared in a written form.
‘This case also appears to highlight the problems facing a Tribunal when considering credibility. As Mr O’Hara confirmed to us, the tribunal must not substitute their own view for the view of the employer, and thus they should be putting to themselves the question – could this employer acting reasonably and fairly in these circumstances properly accept the facts and opinions which it did? The evidence is that given during the disciplinary procedures and not that which is given before the Tribunal.
If a Tribunal is to say that this employer could not reasonably have accepted a witness as truthful, it seems to us that that decision must be based upon logical and substantial grounds – good reasons. Instances might be – that the witness was a bare faced liar, who must have given that impression to the employer at the relevant time; that the witness was clearly biased – provided that such a bias should have been clear at the relevant time; that documents available at the relevant time clearly showed the witness to be inaccurate and that such documentary evidence was ignored by the employer.
However, there could be other less obvious situations where mere vagueness and uncertainty would not be sufficient, and it should never be forgotten that cross-examination by experienced advocates may produce a picture not made evident during the disciplinary procedures. For the Tribunal merely to prefer one witness to another might well not be sufficient as this could be to substitute their own view. The employers have the peculiar advantage over the Tribunal of having an intimate knowledge of the geography, the nature and workings of the business and the various members of the staff.’
Wood P
[1989] IRLR 235, [1989] ICR 518
England and Wales
Citing:
Cited – British Home Stores Ltd v Burchell EAT 1978
B had been dismissed for allegedly being involved with a number of other employees in acts of dishonesty relating to staff purchases. She had denied the abuse. The tribunal had found the dismissal unfair in the methods used to decide to dismiss her. . .
Cited by:
Mentioned – Hussain v Elonex Plc CA 17-Mar-1999
The claimant appealed against a finding that he had not been unfairly dismissed. He said that the procedure adopted had been unfair, since he had not had opportunity to see the statements provided to his employer by independent witnesses of the . .
Mentioned – Regina (S) v Brent London Borough Council and Others Regina (T) v Brent and Others Regina (P) v Oxfordshire County Council’s Exclusion Appeals Panel and Another CA 17-May-2002
Three pupils appealed their exclusion from school for violent or threatening behaviour.
Held: The statute imposed clear obligations on the appeal panel to act independently, and to consider both the individual circumstances of the child and . .
Cited – West Coast Trains Ltd v Murphy EAT 4-Apr-2006
EAT The claimant, a service manager employed on the respondents’ trains, was dismissed on conduct grounds for having sworn at and been threatening towards a customer. She claimed she had been unfairly dismissed . .
Cited – Ramsey, Hamblet and Treweeke v Walker Snack Foods Ltd, D McDonnell EAT 13-Feb-2004
Three employees appealed decisions that they had not been unfairly dismissed. The employer had suspected them of involvement in a scam involving the diversion of prize-winning crisp packets. Informants had insisted on remaining anonymous. The . .
Cited – Asda Stores Ltd v Thompson and others EAT 11-Oct-2001
. .
Cited – 2 Care v Ababio EAT 20-Oct-1999
. .
Cited – TNT Express UK Ltd v McConnell EAT 25-Nov-1994
. .
Cited – Boys and Girls Welfare Society v McDonald EAT 18-Oct-1995
. .
Cited – Signs and Labels Ltd v Wallace EAT 22-Jan-1996
. .
Cited – Ainsworth and others v Whitbread Plc EAT 17-Dec-1997
. .
Cited – Louies v Coventry Hood and Seating Co EAT 1990
An employer’s dismissal procedure need not be prima facie unfair if the employee was not permitted to know the contents of statements on which the employer would rely in taking a decision to dismiss or confirm a previous dismissal. Wood J said: ‘It . .
Lists of cited by and citing cases may be incomplete.
Limitation, Employment
Leading Case
Updated: 09 November 2021; Ref: scu.267933