The claimant was employed by Santander as a Senior Manager – Policy Implementation, from June 2017 until the 2nd April 2018 when she resigned.  Following the resignation, the claimant issued proceedings alleging constructing dismissal on the basis of sex discrimination, victimisation (whistleblowing) and harassment.  

In terms of the whistleblowing, the claimant relied on nine alleged protected disclosures from June to November 2017.   The allegations related to the anti-bribery and corruption processes within the respondent and how they were being applied to some Iranian clients.   The issue that arose out of this preliminary hearing and associated appeal was the disclosure of documents relating to a 31-page document created by the claimant entitled ‘Post-termination whistleblowing document’.  This document was not relied upon as a protected disclosure for the purpose of her claims on the basis that it came after the termination of her employment.

The respondents acknowledged that any documents which support the case that the claimant’s beliefs were reasonable would be disclosable.  However, their position is whether any investigation documents are in fact disclosable in the course of litigation, especially as a result of a post-termination whistleblowing document which is not relied upon within that litigation.  The ET held that the documents should be disclosed where they are ‘potentially’ relevant’ and this was appealed by the respondent.

The EAT noted that any duty of disclosure continues until the proceedings are concluded.  There was reference to the decision in Canadian Imperial Bank of Commerce v Beck when Wall LJ stated that the test is whether an order for discovery is necessary for fairly disposing of the proceedings.   Relevance is a factor but is not sufficient to warrant the making of an order. The court has to be mindful of ‘fishing expeditions’.  In bearing this in mind, the fact that the Tribunal focused on ‘potentially relevant’ as the criterion for disclosure was not correct.    They would have to meet the requirements under Rule 31.6 under the Civil Procedure Rules (England and Wales only) which go to whether they adversely or support a party’s case. Accordingly, the appeal was allowed.

Practical Lessons

This case focuses on the procedural aspect of disclosure which can be fundamental in making a case before the Tribunal.  It is helpful that the focus is on the extent to which the documents affect the party’s case rather than the mere criterion of ‘potential relevance’.   Therefore, this should be considered when faced with the question as to whether particular documents should be disclosed or not.
https://assets.publishing.service.gov.uk/media/5fbe851f8fa8f559dbb1adce/Santander_UK_PLC_and_Others_v_Miss_S_Bharaj_UKEAT_0075_20_LA__V_.pdf