Akhigbe v Berkeley Homes (Urban Renaissance) Ltd

A tribunal may strike out a whistleblowing detriment allegation where the documentary material establishes that it has no reasonable prospect of success. The need for caution where facts are disputed does not require a trial if oral evidence could not improve the claimant’s case.

A persistent refusal to comply with a subject access request could, in principle, be a detriment consisting of a deliberate failure to act under section 47B(1) of the Employment Rights Act 1996. The claimant must nevertheless show an act or deliberate failure to act. Section 48(2) places on the employer the burden of showing the ground for a proved act or failure; it does not transfer the evidential burden of proving that the alleged detriment occurred.

The claimant was dismissed during his probationary employment. Following dismissal, he made a subject access request under the Data Protection Act 1998. The respondent disclosed documents, relied on exemptions in respect of some material, and explained that further searches were being undertaken.

In Employment Tribunal proceedings, the claimant alleged protected disclosures and a number of detriments. One alleged detriment was a persistent refusal to release his personal data. At a preliminary hearing, the Employment Judge struck out that allegation as having no reasonable prospect of success.

The claimant appealed. The preliminary issue was whether the Employment Judge had erred by reaching that conclusion without oral evidence, particularly evidence from the solicitor who handled the request.

1. Appeal dismissed. The Employment Judge made no error of law in striking out the allegation that the respondent had persistently refused to release the claimant’s personal data.

2. A persistent refusal to release requested personal data could in principle be a detriment in the form of a deliberate failure to act under section 47B(1) of the Employment Rights Act 1996. A detriment is a disadvantage which ordinary reasonable people would regard as such. However, the pleaded case was a conscious refusal to disclose material which the respondent believed the claimant was entitled to receive. It was not a case based on an innocent and good-faith omission.

3. Section 48(2) of the Employment Rights Act 1996 requires an employer to prove the ground on which a proved act or deliberate failure was done. It does not oblige the employer to prove that an alleged act or failure occurred. That remains an evidential burden on the employee.

4. The Employment Judge had the relevant correspondence and documents. He was aware that some requested documents had not been supplied, but was entitled to find that the disclosure, explanations, reliance on exemptions and searches could not reasonably be characterised as a persistent refusal. There was no realistic prospect that cross-examination of the solicitor or other oral evidence would improve that case.

5. Documents discovered and disclosed after the strike-out hearing could not show that the Employment Judge had erred in law on the evidence then available. Since this detriment allegation could not succeed, the remaining grounds could not result in the decision being overturned or remitted.

• Employment Appeal Tribunal: appeal dismissed. The Tribunal upheld the Employment Judge’s strike-out of the alleged detriment of persistent refusal to release personal data.
• Employment Tribunal, Watford: at a preliminary hearing on 6 January 2017, the Employment Judge held that the allegation had no reasonable prospect of success and struck it out.