Disclosure
The claimant in the employment tribunal complains that she was subjected to detrimental treatment because she made a number of protected disclosures (PDs) and was constructively unfairly dismissed, for the reason or principal reason of having done so. The claims are contested and ongoing. This appeal relates to the refusal of an application by her for specific disclosure. All of the requests contained within that application related to documents which she believed would be likely to show that the allegations of wrongdoing that were the subject of her claimed PDs were factually true.
As confirmed and discussed in Santander UK Plc v Bharaj [2021] ICR 580 disclosure in the employment tribunal is governed by the principles and guidance derived from CPR 31 and the associated practice directions. The touchstone is necessity and applications for specific disclosure must be considered and determined in accordance with the overriding objective.
The statutory definition of a PD does not, itself, turn upon whether allegations of wrongdoing that are the subject of a claimed PD are factually true. There is no rule of law that this will necessarily be an issue that needs to be determined by the tribunal generally or in a particular type of case. Whether this is relevant to any particular issue in a given case, and if so, how, or to what extent, will be fact-sensitive to the particular pleadings, and issues, in the given case. Dicta in Darnton v University of Surrey [2003] IRLR 133, Chesterton Global Limited v Nurmohamed [2018] ICR 731 and Babula v Waltham Forest College [2007] ICR 1026 considered.
Accordingly, an application for specific disclosure of documents said to be likely to show whether allegations of wrongdoing made in claimed PDs factually occurred, must be supported by reasoned argument by reference to the particular pleadings and issues in the case at hand, explaining why the disclosure is both sufficiently relevant to an issue or issues in the case, and necessary to the fair determination of such issue or issues.
The tribunal in this case, which correctly directed itself as to the essential guiding principles of law, was, applying those principles, largely right to reject the claimant’s specific disclosure application. In relation to the bulk of the application the appeal was therefore dismissed. However, certain of the requests relating to a claimed PD of alleged furlough-grant fraud warranted further consideration as to whether they may, at least partially, have been justified. The appeal was allowed in respect of those requests.
Judges:
His Honour Judge Auerbach
Citations:
[2022] EAT 44
Links:
Jurisdiction:
England and Wales
Employment
Updated: 20 April 2022; Ref: scu.675608