Thread by @JasonBraier

1/ Dodd v UK Direct Business Solutions: EAT looks at specific disclosure in the context of a whistleblowing claim, & how relevant proof of truth of wrongdoing is to the establishment of protected disclosures under s.43B ERA
assets.publishing.service.gov.uk/media/62349aa0…
#ukemplaw

2/ D was UDBS's in-house legal counsel for 8 months, before she resigned. She claimed constructive unfair dismissal resulting from detriments she says she suffered for making protected disclosures, including of furlough fraud & mis-selling.

3/ D made an application for specific disclosure. In refusing the application, the EJ noted the test is whether disclosure is 'necessary for fairly disposing of the proceedings' & that D's application was made because the documents might show UDBS did commit the wrongdoings.

4/ The EJ looked to the s.43B test & noted the public interest test didn't turn on whether in fact UDBS was doing anything wrong. D's appn was also overly wide - the EJ might have had sympathy with an appn limited to docs D saw that led her to believe there'd been wrongdoing.

5/ D appealed this decision, arguing the docs were relevant to genuineness & reasonableness of D's belief & whether there was detrimental treatment because of D's disclosures. D sought to argue that determining factual accuracy of the disclosure went to reasonableness of belief.

6/ D also sought to argue that the evidence of wrongdoing was relevant to detriment, as someone guilty of wrongdoing was more likely to be motivated to act detrimentally towards the accuser.

7/ The EAT restated the law on disclosure as set out recently in Bharaj & Element, where ET r.31 was held to follow the CPR 31 approach & to be subject to disclosure a document has to be of 'such relevance that disclosure is necessary for the fair disposal of proceedings'.

8/ As regards a protected disclosure, the EAT noted from Babula that even mistaken beliefs could pass the reasonable belief test, though it is of course part of the ET function to decide whether a claimant really did believe what they claimed to believe.

9/ Darnton, the EAT explained, makes the point that where a worker claims to have made the PD prompted by personal sight of evidence underlying it, then evidence that that state of affairs didn't exist will be of relevance.

10/ The EAT accepted conversely where the worker's position is they've direct knowledge of the disclosed situation, evidence that it really did exist may be relevant to whether they truly hold the belief. But it's not always relevant - that's a fact-sensitive question for the ET

11/ On reasonableness of a belief, the EAT noted from Korashi the relevance of the discloser's personal circumstances: there may be different expectations of the surgeon as against the lay observer when determining whether their belief re breach of surgical process is reasonable.

12/ In considering the specific disclosure requests in light of those principles, the EAT considered that many of the requests were insufficiently targeted or explained & were overly generalised & thus that the EJ's rejection of the request was appropriate.

13/ The appeal was only allowed to a very limited extent to remit for redetermination of disclosure of docs concerned with whether 3 named employees were working in April 2020 & were under furlough at the time. Other than that all grounds were dismissed.

14/ The decision provides a salutary lesson to those applying for specific disclosure - be focused & measured & if the request is for disclosure of documents of some breadth, explain clearly why they are needed, lest good requests get lost among the bad.