We have a situation where the initial grievance meeting has been adjourned, investigations have been completed, but just before the reconvened grievance meeting the employee has submitted lengthy emails in relation to the initial issue and raised additional concerns. Should we hold another meeting with the employee and then carry out further investigations?

Possibly, yes – at least in relation to the new issues.

In terms of the emails in relation to the initial issue, do these add anything material to what the employee has already raised concerns about? Or is it simply the case that the employee has provided more detail in relation to their initial concerns, but the key factual and evidential basis for their complaint has not changed? If the emails do not add anything substantial, then you should be able to respond to the initial grievance without carrying out any further investigations. If, however, the emails raise additional information in relation to the initial grievance that could affect the outcome (for example, they show that there is serious doubt over any of the conclusions you have already reached) then, as annoying as this may be, you should take steps to investigate these further before concluding the grievance process. This may mean holding another meeting with the employee first, and maybe other witnesses too if the new information is relevant to their evidence. That is particularly the case if there is a good reason why the employee was unable to provide that extra evidence first time around, or if it relates to conduct subsequent to the initial investigation that sheds some important new light on it.

In terms of the additional concerns, if these effectively constitute a new grievance then the company will be required to address it (which will require speaking to the employee and may include carrying out further investigations). Depending on the nature of the new allegations, it may be possible for them to be dealt with separately and at a later stage, i.e. after the conclusion of the employee’s initial grievance. If they are related, however, it is likely to be more appropriate to investigate them now and then respond to the employee in relation to all their concerns in one go. We appreciate how frustrating this must be, but it is important that you are seen to act reasonably in relation to this new information. In convening that further meeting with the employee it would be appropriate to remind them to be ready to make all the points and bring all the evidence they have so that there is no need for any further hiccup in the process.

As part of the grievance investigation, can witnesses request their statement to be anonymous? And what would the implications of this be?

Yes, witnesses can, and indeed sometimes do, ask for their statement to be anonymised. This is probably most likely to happen as part of a disciplinary investigation, but it can happen during grievance investigations too, especially if there is a likelihood that disciplinary action may be taken against another employee if the grievance is upheld.

The first step would be to understand why the employee wants their statement to be anonymous. Usually it is because they are concerned about potential negative repercussions for their own career or other reprisals if they give evidence. They should of course be reassured that they will not suffer any detrimental treatment for giving evidence and the employer should obviously take steps to ensure this does not happen. Failure to protect against retribution is quite likely to be cause for a constructive dismissal claim.

The Acas non-statutory guidance on conducting workplace investigations states that investigators should try to avoid anonymising witness statements whenever possible. This is because whilst it is important to take into account the concerns of the witness, it is also important to conduct an open and transparent investigation and respect the rights of other employees to be able to challenge any evidence that is given against them. This can obviously be much more difficult if they do not know who has given the statement.

The Acas guidance recommends that anonymous statements are only used in exceptional circumstances, namely where a witness has a genuine fear of reprisals. Where an investigator decides that the circumstances do warrant an agreement to anonymity, an interview should be conducted with the witness and notes taken without regard to the need for anonymity. The investigator should then consider what, if any, parts of the statement need to be omitted or redacted to prevent identification. Remember – sometimes the circumstances of the case will mean that there is no point in anonymising a statement anyway, as it will be obvious who has given it. Remember too that you cannot safely rely on any allegation that the accused employee has not had the chance to rebut, so the more fundamental is that evidence to the employer’s decision, the less it is appropriate to anonymise it.

Even if you agree not to disclose the identity of the complainant or witness in your process, you cannot promise that it will remain hidden for good – if there is later legal challenge or litigation, their identity will almost certainly have to come out.

In addition to the points raised in the Acas guidance, case law has made it clear that further investigation should also always take place to either confirm or undermine any information given on an anonymous basis. For example, the investigator should, where possible, compare the witness’s statement to other statements to see if they support it. Where appropriate, tactful enquiries should also be made of the witness’s character and background to help assess the credibility of their evidence. The investigating manager should also be seen to consider how much weight should be given to this evidence in light of the circumstances.

In short, exercise caution before going down this route and if you have any concerns, seek some advice first.