During an investigation, disciplinary or grievance process, it’s easy to get so embroiled in the detail that you forget one important thing; to obtain consent from any witnesses who are providing you with evidence, whether that be evidence against an employee whom you are disciplining or evidence for or against an employee or employees involved in a grievance process. You might (innocently but wrongly) assume that because the employee is talking to you about an incident or writing it down for your information, that they are happy for you to use this evidence as part of your ongoing investigations. However, this is not always the case.
A crucial step, not only in line with UK employment law and the principles of the UK General Data Protection Regulation (UK-GDPR) but also in the interests of safeguarding the rights and privacy of the individuals involved in providing the witness evidence is to obtain clear consent to use this as part of your process. It needs to be made completely clear how you will use that witness evidence, including sharing the evidence with other employees where necessary.
In this article, we will consider the reasons why obtaining consent is necessary and provide guidance on what to do if an employee withholds consent, including the process of anonymising statements.
Why Is Consent for Witness Evidence Essential?
- Data Protection: Obtaining witness evidence includes the collection, storage, and sharing of personal data. By seeking consent, employers can ensure that they are respecting the privacy and data protection rights of the individual witness.
- Legal Compliance: Employment legislation and the UK-GDPR stipulate that employees’ personal data, including witness statements, must be processed lawfully, fairly, and transparently. Consent serves as a lawful basis for processing such data and therefore in obtaining it, you can be sure that you have fulfilled your legal obligations.
- Morale and Trust: If an employee believes they are talking to you in confidence and then their statement or things they have told you are relayed back to one of their colleagues, particularly one who is subject to suffer a detriment due to the evidence provided such as a disciplinary sanction, they may lose trust and confidence in you as their employer. This could result in them not providing evidence in future, being fearful of any repercussions of providing evidence against another, cause them to feel resentment, or even result in an employment claim if the breach of trust and confidence is severe enough.
- Transparency and Fairness: Giving control to the employee providing the evidence promotes fairness of process all round. It promotes transparency by allowing individuals to make informed decisions about the disclosure of the evidence and their personal information.
- Risk Mitigation: Ultimately, if you fail to obtain consent then it could result in legal complications, including fines and penalties for non-compliance with GDPR regulations or employment law tribunal claims. It is essential to mitigate these risks by being open and honest about how the evidence will be used and shared and ensuring proper consent is obtained.
What can an Employer do if an Employee Refuses to Give Consent to Use or Share Evidence?
An employee may refuse consent for you to use or share their evidence. In such cases, employers should consider the following alternatives:
- Anonymisation: Can you remove any identifying information or details that could reveal the employee’s identity? If so, ask the employee whether they would be happy for you to now use and / or share their witness evidence but by removing their name from it. It’s important to note that you shouldn’t take a blanket approach to this and anonymise every statement. You need to consider how fair this would be to the individual who the evidence is about if they are unable to prepare their defence as well as they if they knew who provided the evidence. It should only be considered when there are strong reasons for doing so such as a genuine fear from the person providing it. Bear in mind that a tribunal may order for the name to be provided in later tribunal proceedings and this should be mentioned to the employee providing the anonymised evidence.
- Assess Necessity: Decide whether the evidence is crucial to the process. If the employee’s statement is not integral to the investigation, disciplinary, or grievance procedure, which could proceed without it, it may not be necessary to use the evidence especially if you have alternative strong pieces of evidence.
- Respect the Employee’s Decision: You should always respect an employee’s decision not to consent to sharing their statement or evidence. A failure to do so could result in legal claims. Additionally, consent is only valid where it was freely given and not where any pressure was applied.
- Outline any Impact: Sometimes, withholding consent won’t necessarily impact that employee, however in cases where one employee has, for example, complained of bullying, harassment or other misconduct towards them by another, you will need to inform them that without being able to use or share their witness evidence, you are likely unable to proceed further with any investigations or take any action against the alleged perpetrator.
Effectiveness of Anonymising Evidence in the Workplace
It is important to consider the specific context and details contained in the statement. Simply removing an individual’s name may not provide full anonymity. You should assess your anonymisation process carefully. Anonymisation may be less effective when:
- The statement contains unique information that could still identify the employee.
- The statement is part of a broader set of evidence that, when combined, could lead to the identification of the employee.
- The employee’s role or involvement in the situation is widely known within the organisation.
In conclusion, obtaining consent from employees when collecting witness statements or evidence is not just a legal requirement but also an important step in maintaining trust and confidence in your workforce. Frustrating as it may be, it may mean that in some situations you cannot proceed further with your investigations.