When bringing a tribunal claim for automatically unfair dismissal after making a protected disclosure (blowing the whistle), it makes sense to have evidence to back up the claim. The High Court has held in Nissan v Passi, however, that Mr Passi was not entitled to hold onto confidential documents containing privileged information belonging to Nissan for the purpose of taking legal advice.
Mr Passi worked as a solicitor for Nissan in Japan for eight years until March 2020, when he was transferred back to work in the UK against his wishes. He was dismissed in November 2020 ostensibly because he failed to follow lawful instructions and procedures. Mr Passi argued that he was dismissed because he had made protected disclosures. He brought claims of victimisation, whistleblowing and unfair dismissal.
In the lead up to the tribunal proceedings, it became apparent that Mr Passi had over 100 sensitive and confidential documents in his possession, which were subject to legal privilege. He admitted that he had taken the documents from his former employer, but argued that he had only done so with a view to taking legal advice. He said he also had concerns that, had he not taken them, Nissan might not necessarily have disclosed them for the purpose of his forthcoming tribunal proceedings.
Nissan applied for an interim injunction to force Mr Passi to return the material, arguing that he could not be trusted to comply voluntarily as he had failed to return his work laptop and his iPhone when he was repatriated to the UK, despite being repeatedly asked to do so. Instead, he had said he would only return them on certain conditions and/or ignored the company’s calls. As a result, Nissan had to get an order requiring him to hand over the laptop and iPhone from a court in Japan.
When his employment was subsequently terminated, Nissan said that they expressly reminded Mr Passi of his obligation to deliver up all property belonging to the company, including documents. In response, he told Nissan that he had already handed everything over, either by leaving it at their premises or because it was on the laptop that had already been seized. Although he asked for further time in November 2020 to make sure that he hadn’t missed anything, the company did not hear from him again, despite reminders that they sent him about his obligations in February and March 2021.
High Court decision
Holding that there was a serious issue to be tried, the High Court granted the injunction for the following reasons:
- Mr Passi had no right to the documents and therefore had no right to keep them in his possession
- It was not up to Mr Passi to decide which documents should be disclosed by Nissan at his tribunal hearing. Instead, it was for his former employer to make “full and proper disclosure … including disclosing privileged documents and asserting any claim to privilege from inspection”.
If Mr Passi had concerns that Nissan would not make the proper disclosure or might have made a wrongful claim that a document was privileged, it would then be up to him to make an application to that effect. However, as the “party without the rights and obligations of disclosure”, he was not in a position to pre-empt that decision.
This decision helps to clarify what information can be retained by an employee once their employment has come to an end, whether what can be retained can be used for the purpose of any ongoing legal challenge and makes clear that the court was not amused by those who might be seen to be usurping their role or bypassing their rules and procedures.