This week, Esther Smith, partner at Thomas Eggar, and Anna Youngs, solicitor at Mills & Reeve, advise on the implications of withholding a witness statement due to the fact it could put a witness at risk of harassment.
The question:
We have just concluded a very sensitive and long investigation into an employee’s grievance against their line manager. Now we are going to arrange a grievance resolution meeting at which the employee will be informed of the outcome of the investigation.
We know we have to send our report and witness statements to the employee in advance of that meeting. However, we are concerned that by issuing certain witness statements we may be putting a specific witness at risk of harassment or retaliation from those involved in the grievance. This person is already in a fragile mental state as a result of the investigation. Would this be reasonable grounds to withhold their statement from the bundle that we issue to the aggrieved employee prior to the grievance resolution meeting?
Legal advice:
Esther Smith, partner, Thomas Eggar
Whilst I can fully understand your reasons for wanting to withhold the witness statement of this particular individual, if the statement is material to the investigation and the finding reached, then I believe that you should be disclosing it to the employee who has raised the grievance along with other paperwork.
In some circumstances you can justify providing a statement on an anonymous basis and this is likely to be one of those situations. However, if in reality the content of the statement itself is going to make it clear who the statement is by then there is probably little benefit in going down this route. Although, it may serve to comfort the employee who made the statement, and they may feel that the company is looking after their interest.
Given that you have already picked up on the risk of harassment or retaliation towards the person who made the statement, I suggest that you try to take action to prevent or at least limit the possibility of this happening. Whilst I am not fully aware of the circumstances of this case, in other similar situations employers may consider offering the person who made the statement, a period of paid leave from work whilst the grievance is concluded. This enables you to send the statement to the employee who raised the grievance, hold the meeting with them and seek to resolve the grievance before, then integrating both them and the person who made the statement back into the workplace.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar
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Anna Youngs, solicitor, Mills & Reeve
Where someone raises a grievance, that person does not need to see all the statements made in relation to their grievance. They simply need to know the outcome of the grievance investigation and the reasons for that outcome.
Seeing everyone’s statements can make a situation worse, because employees may say things in their interviews that they would not normally say about their colleagues and would not want their colleagues to know.
Therefore, in respect of any grievance there is no need to send the complaint copies of all statements obtained. You may decide to send redacted copies of statements or a précis of the evidence obtained. I suggest that providing a summary of the evidence would be the most sensible way forward – in respect of all the evidence, not just the evidence of the fragile employee.
Someone who is going to attend a disciplinary hearing to defend themselves or who has allegations against them will need to know what those allegations are so that they have a proper chance to defend themselves. So, in this case, if the grievance against the line manager is upheld and the line manager faces disciplinary action as a result, s/he will need to know what the allegations are, which may include having a copy of the witness statements. It may still be possible, however, to anonymise or précis evidence so that a particular witness remains unidentifiable – particularly if their evidence is corroborative rather than primary evidence.
As a rule of thumb, witness statements obtained in the course of a grievance hearing should not be disclosed to the complainant unless there is a good reason to do so. However, witness evidence in a disciplinary hearing should be disclosed to the accused employee unless there is a good reason not to disclose them.
If a Data Protection Act request is made, you will have to consider whether any information gathered is disclosable.
Anna Youngs is a solicitor in the employment team at Mills & Reeve. Anna can be contacted at: anna.youngs@mills-reeve.com
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