DODD v UK DIRECT SOLUTIONS BUSINESS LIMITED and Anor

The Employment Appeal Tribunal considered an appeal against a tribunal judge's refusal of an application for specific disclosure in whistleblowing (protected disclosure) claims. The court confirmed that disclosure in the employment tribunal is governed by the principles of CPR 31 and the accompanying practice directions: the touchstone is necessity for the fair disposal of the proceedings and the overriding objective. The statutory definition of a protected disclosure turns on the worker's reasonable belief at the time and does not as a matter of law require the tribunal to determine the factual truth of allegations in every case.

The EAT held that an applicant for specific disclosure seeking documents said to show whether alleged wrongdoing actually occurred must explain, with reference to the pleadings and issues, why the documents are sufficiently relevant and necessary. Applying those principles, the tribunal was largely right to refuse the claimant's wide-ranging and largely unfocussed application as disproportionate, but erred in not giving further consideration to limited requests relating to particular employees and a narrow time window concerning alleged furlough-grant fraud; those limited requests warranted further consideration or partial disclosure.

This was an appeal from a case management decision refusing an application for specific disclosure made by a claimant who alleges she made multiple protected disclosures and was constructively unfairly dismissed. The claimant sought disclosure of categories of documents she said would show that the alleged wrongdoing underlying her disclosures (furlough-grant fraud and mis‑selling) was factually true.

The appeal raised the following issues for the EAT to consider:

• the correct principles governing specific disclosure in employment tribunals (CPR 31 principles, necessity and the overriding objective);
• whether evidence that allegations were in fact true is necessarily relevant to the statutory tests for a protected disclosure (reasonable belief and public interest); and
• whether the tribunal judge erred in refusing broad categories of disclosure as disproportionate and as a fishing expedition, and whether some narrower requests should have been ordered.

The EAT reviewed authorities including Santander UK Plc v Bharaj, Darnton v University of Surrey, Chesterton Global Ltd v Nurmohamed and Babula v Waltham Forest College, and restated that the statutory test for a qualifying disclosure focuses on the worker's reasonable belief at the time. The tribunal may consider factual accuracy in cases where the claimant relies on direct sight of documents as the basis of a disclosed belief, but there is no legal rule that documentary proof of wrongdoing must be ordered in every PD case.

The EAT found that the claimant's application was generally unfocussed and over-broad, did not sufficiently tie categories of documents to pleaded issues, and would impose disproportionate burden and delay. The judge had correctly applied the necessity and proportionality test and was entitled to refuse most requests. However, the EAT allowed the appeal in part and directed that limited furlough-related requests (documents concerning three named employees and related communications up to 30 April 2020) should be reconsidered and may warrant specific disclosure, and allowed the parties time to agree or make submissions about precise terms of that limited order.

Appeal allowed in part and dismissed in part. The EAT upheld the tribunal judge's application of CPR 31 principles, necessity and the overriding objective and agreed that most of the claimant's broad and unfocussed specific disclosure requests were unnecessary and disproportionate. However, the EAT concluded that limited disclosure requests relating to particular named employees and a confined time period concerning the alleged furlough-grant fraud merited further consideration and should not have been rejected without exploration; the appeal was therefore allowed solely in respect of those narrow furlough-related requests.

This is an appeal to the Employment Appeal Tribunal from a decision of Employment Judge Aspden at a case management hearing on 5 August 2021 refusing the claimant's application for specific disclosure. The paper application to permit the appeal was considered by DHCJ Gavin Mansfield QC who allowed the grounds to proceed to a full hearing. Earlier case management directions were given by EJ Sweeney on 1 April 2021. Neutral citation for this appeal: [2022] EAT 44.