When requesting an order for disclosure of documents in a whistleblowing claim alleging wrongdoing, the Employment Appeal Tribunal (EAT) held in Dodd v UK Direct Business Solutions Ltd and anor that the focus of tribunals must be on whether the disclosure would be in the public interest, as opposed to whether the allegations of wrongdoing were true.
Basic facts
After working for seven months as the company’s in-house legal counsel, Ms Dodd resigned, arguing that she had been constructively unfairly dismissed for making protected disclosures (blowing the whistle). These disclosures included allegations that the company had fraudulently claimed furlough grants during the pandemic for certain employees and that it had also engaged in mis-selling.
After lodging tribunal proceedings, she made a request for disclosure of a large number of company documents under rule 31 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. She argued that all the requests related to documents which she believed would be likely to show that her allegations of wrongdoing were factually true, thereby shedding light on whether or not she had been subjected to a detriment.
The company, however, argued that the requests were so broad that it would take many weeks and a great deal of expense to conduct the searches, thereby potentially putting the date for the hearing at risk.
Tribunal decision
As the objective of the rules is to enable tribunals to deal with cases fairly and justly, the judge said that she had to ensure that the parties were on an equal footing and that the claim was dealt with in a way that was proportionate to the complexity and importance of the issues. At the same time, she had to try to minimise expense and avoid delaying the hearing.
On that basis, the judge concluded that the documents sought by Ms Dodd were too extensive and of limited relevance, while others post-dated the protected disclosures. Apart from the time and expense involved in searching for the documentation, expanding the issues before the tribunal to include the question of whether the company had engaged in wrongdoing would extend the time needed for the hearing far beyond what was proportionate. In any event, the issue of wrongdoing was not relevant to whether the disclosures were in the public interest, which was the main issue. The judge therefore concluded that the disclosure was not necessary for the fair disposal of the case.
Ms Dodd appealed, arguing (among other things) that the tribunal was wrong to focus on the issue of whether her disclosures were in the public interest as opposed to whether or not the company had committed wrongdoing.
EAT decision
Dismissing most of her appeal, the EAT held that the “touchstone” in these cases was necessity. As such, applications for specific disclosure must be decided in accordance with that overriding objective, not on the basis of whether allegations of wrongdoing were factually true. Indeed, it confirmed that there was no rule of law that the issue of wrongdoing had to be decided by the tribunal when considering protected disclosure cases.
Instead, an application for specific disclosure of documents that will purportedly show whether allegations of wrongdoing were true must be supported by reasoned argument, setting out why the disclosure is both sufficiently relevant to an issue in the case and necessary to the fair determination of those issues.
Applying those principles in this case, the tribunal was, therefore, right for the most part to reject Ms Dodd’s specific disclosure application. However, certain of the requests relating to alleged furlough-grant fraud warranted further consideration as to whether they might, at least partially, have been justified. The appeal was therefore allowed in respect of those requests only.