Northampton Borough Council v Wolstenholme

An Employment Tribunal errs in law if it orders disclosure that would require a public body to breach a statutory prohibition on onward disclosure of information. Where an apparent statutory exception might permit disclosure, the Tribunal must give adequate reasons for concluding that the exception applies.

Before considering a route by which protected material might lawfully be obtained, the Tribunal should identify the live issue to which it is relevant. It may then consider whether the statutory holder of the information can disclose it pursuant to an order directed to that holder.

The Claimant was dismissed after undertaking secondary employment without the Respondent's permission. During its investigation, the Respondent obtained information from HMRC concerning the Claimant.

Employment Judge Ord ordered the Respondent to disclose documents sent to and received from HMRC, subject to redaction. The Respondent appealed. It relied on Anti-Terrorism, Crime and Security Act 2001, section 19(5), and an HMRC communication stating that the information could not be disclosed for Employment Tribunal proceedings.

The central issue was whether the disclosure order unlawfully required onward disclosure of HMRC information and, if so, what further course should be taken.

1. Appeal allowed. The disclosure order was set aside and the matter was remitted to the Employment Tribunal for reconsideration.

2. Information obtained from HMRC pursuant to section 19(2) of the Anti-Terrorism, Crime and Security Act 2001 could not be further disclosed by the Respondent except in the circumstances permitted by section 19(5) and with the Commissioners' consent. An order that required the Respondent to disclose that information would require a public body to breach the law and was therefore an error of law.

3. The HMRC email had stated that the material could not be disclosed in Employment Tribunal proceedings. The Tribunal gave no reasons, despite a request, explaining whether it had seen that email or why it nevertheless considered disclosure permissible. If the Tribunal had relied on an exception to the statutory restriction, the absence of reasons was itself an error of law.

4. On remission, the Tribunal should first determine whether the HMRC information is relevant to a genuinely live issue, particularly given the Claimant's admissions concerning secondary employment. If it is relevant, the Tribunal should consider HMRC's indication that it could disclose the material to the Tribunal if ordered to do so by a Tribunal Judge.

• Employment Appeal Tribunal: allowed the Respondent's appeal in [2018] UKEAT 0130_18_0410, set aside Employment Judge Ord's disclosure order of 29 May 2018, and remitted the disclosure issue.
• Employment Tribunal: ordered disclosure of documents sent to and received from HMRC concerning the Claimant, subject to redaction.