Can an employer guarantee that an employee


Can an employer guarantee that an employee's evidence will be confidential?

Where an allegation of misconduct is made, employers are normally under a duty to investigate, in order to determine whether it is appropriate for disciplinary action to be taken. Employers must also investigate the background to any grievance raised, in order to establish whether the grievance should be upheld. Normally such investigations will involve taking statements from other employees. What happens where an employee giving a statement wishes it to be given in confidence? This is not uncommon, particularly in cases of harassment or bullying or where the "accused" is in a senior position. Can an employer ever give an absolute guarantee that any statement provided will remain confidential? The EAT considered this question in a case called Arqiva v Sagoo.

Mr Sagoo was pursuing claims for unfair dismissal and discrimination on the grounds of race and/or religious belief against his former employer, Arqiva Limited. Prior to his dismissal, Mr Sagoo had raised a grievance against a number of his colleagues which had been investigated by Mr Bradbury, Arqiva's HR director. Mr Bradbury's witness statement identified all the employees he had spoken to when investigating Mr Sagoo's grievance with the exception of an employee identified only as "A". "A" had requested anonymity and had spoken to Mr Bradbury in confidence because he feared reprisal by Mr Sagoo. The evidence provided by "A" was relied on by Arqiva in dismissing Mr Sagoo's grievance.

The Employment Tribunal ordered that the witness statement should be disclosed to Mr Sagoo as it was clearly relevant to the grievance process. However, the EAT overturned this decision. It concluded that the correct test in determining whether an anonymous statement should be disclosed to the other party is whether this is necessary in order to dispose fairly of the proceedings. Relevance alone is not sufficient. The EAT also found that the tribunal had failed to take into account that it is in the public interest for employers to be able to take statements from employees in confidence.

This case confirms that, while in this case confidentiality was preserved, employers carrying out internal investigations cannot give employees an absolute guarantee that any statement they provide will remain confidential. This is because if an Employment Tribunal claim is subsequently brought, the tribunal may decide that disclosure of the statement is necessary in order to dispose of the claim fairly.

Arqiva v Sagoo UKEAT/0135/07