DODD v UK DIRECT SOLUTIONS BUSINESS LIMITED and Anor

Specific disclosure in an employment tribunal is not ordered merely because documents may be relevant. The applicant must show that the documents or defined class are likely to be disclosable and that disclosure is necessary for a fair disposal under the overriding objective.

In protected-disclosure claims, Employment Rights Act 1996, section 43B does not require the alleged wrongdoing to have occurred. The worker’s actual and reasonable belief when making the disclosure is central. The factual truth of the allegation may be relevant where it bears on that belief, but its relevance and probative value are fact-sensitive. There is likewise no general rule that actual wrongdoing proves, or tends to disprove, a detrimental motivation.

A focused application must explain why each category sought is necessary to resolve identified pleaded issues.

The claimant, formerly the respondents’ in-house legal counsel, brought ongoing claims for whistleblowing detriment and constructive unfair dismissal. She alleged protected disclosures concerning fraudulent furlough-grant claims and mis-selling of energy contracts.

At a case-management hearing, the Employment Tribunal refused her application for specific disclosure. The requested documents were said principally to show that the alleged wrongdoing was factually true.

The claimant appealed. The central issue was whether the Tribunal had erred in treating the broad categories sought as unnecessary for the fair determination of the pleaded protected-disclosure and detriment issues.

1. The appeal was allowed in part. The Tribunal was entitled to reject requests 2, 3, 4 and 7 to 11. Those requests were broad, insufficiently correlated to particular pleaded issues, and were not shown to be necessary under the overriding objective.

2. Disclosure is governed by CPR Part 31 principles. The applicant must establish that documents, or a defined class, are likely to be disclosable. Even then, an order is made only to the extent necessary for fairly disposing of the proceedings, taking account of proportionality, cost, delay and the issues actually in dispute. A party cannot require the Tribunal to reformulate an unfocused application.

3. Under Employment Rights Act 1996, section 43B, a qualifying disclosure depends on the worker’s reasonable belief, when making the disclosure, that the information tends to show wrongdoing and that the disclosure is in the public interest. It does not depend on proof that wrongdoing actually occurred. Evidence of factual truth may be relevant where, for example, the worker says that personal sight of particular material prompted the disclosure. Its relevance remains evidential and fact-sensitive.

4. There is no rule that an employer’s actual wrongdoing makes detrimental treatment for whistleblowing more likely, or that absence of wrongdoing makes it less likely. The Tribunal must determine motivation from the evidence and proper inferences in the particular case.

5. Requests 1, 5 and 6 required further consideration. The Tribunal should have considered limited disclosure concerning David Watson, Paul Baxter and Taranvir Chatha, and the period ending on 30 April 2020, subject to clarification of the factual dispute. Further submissions were permitted on the precise disposal order.

• Employment Appeal Tribunal: appeal allowed only in respect of the possible limited disclosure sought by requests 1, 5 and 6; otherwise dismissed ([2022] EAT 44).
• Employment Tribunal: EJ Aspden refused the claimant’s application for specific disclosure at a case-management hearing on 5 August 2021.