The chairman of an Employment Tribunal ordered the disclosure of a witness statement that had been taken during an investigatory meeting by an anonymous witness. The witness had requested confidentiality for fear of the consequences should the claimant have known his identity. The reasons for ordering disclosure were that the document was relevant to the issues in dispute. However, the EAT held that the chairman had adopted the wrong approach because the real question to consider was whether the witness statement was necessary in order to allow a fair hearing.

Employers should bear in mind that a confidential witness statement is not automatically protected from disclosure and that it will depend on the circumstances of the case as to whether it needs to be disclosed to ensure fairness.

Arqiva Limited v Sagoo