Employee Ordered to Return Former Employer’s Confidential Documents

14/03/2022


Those who, without authority, retain their employers’ confidential documents after their employment is terminated commit a civil wrong – but what if they intend to use such documents in pursuit of Employment Tribunal (ET) proceedings? The High Court addressed that thorny issue in a guideline case.

A senior employee lodged ET claims following his dismissal, asserting that he had been subjected to detriments for whistleblowing and that his dismissal was unfair. The employer contended that, during the course of those proceedings, it emerged that he had retained a large number of documents belonging to the employer that contained confidential or legally privileged information. The employer sought an interim injunction with a view to securing the documents’ return.

The employer contended that the documents contained sensitive industrial and legal material and that it would suffer unquantifiable damage if they found their way into the public domain. The employee asserted, amongst other things, that his retention of the documents was justified and that he needed to keep them for the purpose of taking legal advice in connection with the ET proceedings.

Ruling on the matter, the Court found that, on the evidence currently available, the employer had an extremely strong case that the employee had removed and retained its documents without any entitlement to do so. It was not seriously arguable that the employee had a right to make use of the documents for the purpose of obtaining his own personal legal advice.

Having gained access to them, it was not for the employee to unilaterally decide the extent to which they should be disclosed in the ET proceedings. The employer would be required to make full and proper disclosure of documents and other evidence relevant to those proceedings and it would be open to the employee to argue that it had not met that obligation.

The employee was ordered to deliver up relevant confidential documents to the employer and destroy any physical or electronic copies of them in his possession. In accordance with the open justice principle, however, the Court excluded from the scope of the order any documents that had already been read out or specifically referred to in the ET proceedings.

Case notes:
Nissan Motor (GB) Limited v Passi. Case Number: BL-2021-002124

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