Dobson v PricewaterhouseCoopers LLP & Anor (Practice and Procedure)

An Employment Tribunal's case-management decision on whether a non-party has complied with a disclosure order remains subject to appellate intervention where it falls outside the wide margin of discretion. A conclusion of compliance cannot stand where the responses do not answer the ordered requests adequately, including by failing in material respects to identify the source of information or the searches and enquiries undertaken.

The Claimant alleged that his employer, PricewaterhouseCoopers LLP, subjected him to detriments for making protected disclosures concerning tax-based leasing schemes. He sought third-party disclosure from HM Revenue and Customs (HMRC) in support of an alleged failure properly to deal with his grievance.

An Employment Judge made a disclosure order against HMRC on 1 August 2016 without first hearing from HMRC. HMRC responded and sought permission to redact material. On 24 October 2016 the Employment Judge permitted redaction and held that HMRC had complied with the disclosure order. The Claimant's application for reconsideration was, in effect, refused on 13 December 2016.

The appeal concerned the redaction decision and whether HMRC had complied with the original disclosure order.

1. Appeal allowed. The Employment Judge erred in refusing to reconsider the conclusion that HMRC's response of 14 September 2016 complied with the disclosure order.

2. Whether a third party has complied with a disclosure order was essentially a case-management matter. The Employment Judge therefore had a wide margin of discretion. However, the conclusion of compliance fell outside that margin because it could not properly be said that HMRC's answers complied in all respects with the order.

3. Most of HMRC's answers did not identify the source of the information supplied, or the searches and attempts made to obtain answers to the requests. The short response that HMRC had no record or evidence of a meeting did not, without more, adequately address the relevant request.

4. The challenge to the order permitting redaction was not pursued after further submissions and information, as agreement had been reached between the Claimant and HMRC. The Employment Appeal Tribunal substituted an order in agreed terms concerning compliance.

• Employment Appeal Tribunal: Allowed the appeal from the Employment Judge's effective refusal, dated 13 December 2016, to reconsider the finding in the order of 24 October 2016 that HMRC had complied with the disclosure order.
• Employment Tribunal: On 1 August 2016, made a third-party disclosure order against HMRC. On 24 October 2016, permitted redactions and held that HMRC had complied. On 13 December 2016, effectively refused reconsideration.