Application for Specific Disclosure Rejected in Whistleblowing Claim

Dispute About Use of Furlough Scheme

Miss Dodd, who is the claimant in these proceedings, alleges she made a protected disclosure in April 2020 that her employer was fraudulently claiming furlough payments in respect of employees who were continuing to work. She also alleges she made a number of other protected disclosures in 2020 about mis-selling.  Miss Dodd alleges she was subject to detrimental treatment having made these protected disclosures, and that she was constructively unfairly dismissed.

It is important to note Miss Dodd's claims continue to be litigated and are due to be heard in November 2022. This decision relates specifically to Miss Dodd's attempts to force her former employer to disclose a range of documents to her in connection with her claims.

What Is Whistleblower Protection?

Workers who make a protected disclosure about wrongdoing by their employers or third parties are protected against victimisation and dismissal. A disclosure will be protected for the purposes of a whistleblowing claim if all of the following conditions are satisfied:

• there is a disclosure of information
• the worker believes the disclosure to have been made in the public interest
• that belief is reasonable
• the worker believes the disclosure shows one or more defined types of wrongdoing listed in the Employment Rights Act 1996
• that belief is also reasonable

Importantly, it is not necessary for a disclosure to be factually true in order to provide a route to whistleblower protection. The key element will be what the worker reasonably believed at the time they made the disclosure.

The dismissal of an employee because they have made a protected disclosure will be automatically unfair, and workers are also protected from being subject to detriment on the grounds they have made a protected disclosure. There is no financial cap on compensation in whistleblowing claims and no requirement for a minimum period of service.

What Is the Duty of Disclosure?

During Employment Tribunal proceedings, each party is under a duty to disclose to the other all documents relevant to the claim that are in the party's possession, custody or control. The duty applies irrespective of whether the documents are helpful to or undermine each party's position.

Sometimes a dispute might arise around what documents are relevant and should be disclosed. In these circumstances, the Tribunal has the power to order specific disclosure of the documents sought if it agrees the documents are relevant to the claim and their disclosure is in accordance with the overriding objective.

Application for Specific Disclosure

After the parties complied with their general duty of disclosure, Miss Dodd provided a list of categories of documents which she said ought also to have been disclosed. She believed these documents would show her allegations of wrongdoing were factually true.

The Respondent asked Miss Dodd to provide a more focused list of specific documents sought, explaining the relevance of these. Miss Dodd maintained all the documents sought were relevant and made an application to the Tribunal seeking an order for specific disclosure.

The Tribunal rejected Miss Dodd's application. She had not explained why each category of disclosure sought was necessary in relation to the live issues in her claim. This meant her application for specific disclosure was too wide and the Tribunal concluded the Respondent would have been put to unjustified time and expense if the application were granted.

Miss Dodd appealed to the EAT, who dismissed the appeal in the main. It considered the Tribunal justified in its view that Miss Dodd should have presented a more focused application for specific disclosure. It was not enough to rely generally on the fact that the documents sought might show Miss Dodd's disclosures to be true. She needed to explain the relevance of the disclosure to the issues in the case, and how disclosure of the documents would be necessary in order for the case to be disposed of fairly.

What Can Employers Learn from This Case?

This case serves as a useful reminder to parties in Employment Tribunal litigation to apply their minds critically to the duty of disclosure, in order to ensure documents that are being disclosed are relevant to the issues in the claim. If a request for disclosure is not sufficiently focused or the relevance of documents sought is unclear, it is acceptable to explore this with the other side before reaching a decision on disclosure.

For more information on whistleblowing, please contact Michael Delaney in our Employment team, on 07909 912564, or complete the form below.