The Claimant brought a claim involving having made protected disclosures and was granted a third party Order for disclosure of documents and information by HMRC. HMRC applied for a variation of the disclosure order to allow for redaction of documents which was granted. The Claimant appealed.

The EAT allowed the appeal. It could not be concluded that the answers given by HMRC complied in all respects with the Order. In exercise of its powers on appeal the EAT allowed the appeal and substituted an Order in agreed terms.

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Appeal No. UKEAT/0012/17/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 20 June 2017

Before

THE HONOURABLE MRS JUSTICE SLADE DBE

(SITTING ALONE)

DOBSON (APPELLANT)

**

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(1) PRICEWATERHOUSECOOPERS LLP

(2) HM REVENUE & CUSTOMS (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR DOBSON (The Appellant in Person)

For PricewaterhouseCoopers LLP
No representation by or on behalf of the Respondent

Third Party
MR TOM POOLE (of Counsel)
Instructed by:
Enforcement and Insolvency Litigation Team (A6)
Solicitor's Office & Legal Services
HM Revenue & Customs
1st Floor SW Wing
Bush House
Strand
London
WC2B 4RD

PRACTICE AND PROCEDURE - Disclosure

PRACTICE AND PROCEDURE - Review

The Claimant claims he was subjected to a detriment by PricewaterhouseCoopers for making protected disclosures regarding tax-based leasing schemes. An Employment Judge made an Order on 1 August 2016 requiring HMRC (not a party to the proceedings and not notified of the application for disclosure) to provide documents and information requested by the Claimant in two appendices. HMRC gave information in response to the Order and by application sought an Order permitting them to redact documents. This was granted by Order of 24 October 2016, and the Employment Judge held that HMRC had complied with the Order of 1 August. On 13 December 2016 the Employment Judge refused an application by the Claimant to reconsider her Decision of 24 October 2016.

Although the decision that the Order of 1 August 2016 had been complied with was essentially one of case management, the conclusion reached by the Employment Judge was outside the wide margin of discretion. It could not be concluded that the answers given by HMRC on 14 September 2016 complied in all respects with the Order. In exercise of its powers on appeal the Employment Appeal Tribunal allowed the appeal and substituted an Order in agreed terms. The ground of appeal challenging the Order enabling redaction was not pursued on further information being given to the Claimant by HMRC.

1. This appeal concerns Orders made by Employment Judge Sage for disclosure by a non-party, Her Majesty's Revenue & Customs ("HMRC"), related to an underlying claim of alleged detriment for making protected disclosures. In very brief summary, by his claim the Claimant alleges that he was subjected to detriments by his employer, PricewaterhouseCoopers, because or influenced by protected disclosures he made related to tax-based leasing schemes. It appears that some of the alleged detriments occurred long before his ET1 was lodged, but one detriment alleged was the way in which his employer dealt with a grievance that he lodged which was related to the protected disclosures. That application and others will be considered by an Employment Tribunal.

1. On 25 April 2016 the Claimant applied for a third party Order for disclosure of documents and information by HMRC. HMRC were not given the opportunity to make representations before an Order for third party disclosure was made against them on 1 August 2016. The Order made on 1 August 2016 was made without Reasons but was granted in terms of a Schedule request prepared by the Claimant and presented to the Employment Judge. Mr Dobson, the Claimant, has represented himself before this Employment Appeal Tribunal, has in all his communications, in his application to the Employment Judge and his submissions before this court today presented his arguments clearly and articulately. In his application to the Employment Judge that resulted in the Order made on 1 August 2016 the Claimant set out two Schedules, called appendices, listing the information he wished to have ordered and the person to whom that information related cross-referring to paragraphs in his ET1.

1. On 14 September 2016 HMRC submitted a response to the Order made against them without being given the opportunity of making any representations. They also applied for a variation of the disclosure Order. On 24 October 2016 the Employment Judge decided to vary the disclosure Order. The Employment Judge held:

"HMRC's application for a variation of the disclosure order is granted, to allow for redaction of documents. The documentary evidence disclosed by HMRC under the 3rd party disclosure order complies with the order and the redaction to protect sensitive or damaging information is proportionate and necessary.

Further, it is noted that the Respondent has responded to the Claimant's requests for further information in their letter of 7 October. Therefore no order will be made."

1. The Claimant appealed the Order of 24 October 2016. The matter came before HHJ Shanks, who stayed the appeal in order for an application to be made by the Claimant to the Employment Judge for reconsideration of the Order of 24 October. On 13 December 2016 the Employment Judge responded to the application for reconsideration. Although the letter of response does not expressly state that the application for reconsideration was refused, that is the effect and purport of the text of the letter of 13 December.

1. Amongst the other matters, the Employment Judge said in relation to the application for reconsideration of redaction:

"… it was concluded that it would not be in the public interest to order the disclosure of this information, taking into account the sensitive nature of the information and the clarification given by the HMRC as to what information was disclosed to the Respondent. The public interest of protecting the identity of individuals was seen to be of paramount importance and overrode the duty to provide disclosure.

It was also taken into account that the information requested was not necessary in the interests of justice to dispose fairly of the case or with a view to saving expense. …

The Respondent has accepted that the Claimant made qualifying and protected disclosures to them on the 20 March 2012 and the 18 April 2012 and on the 2 December 2014. The 2012 disclosures relate to tax avoidance schemes. The information being sought from HMRC would not assist the Tribunal in the issues before it which will be limited to whether he was subjected to a detriment and whether his claims are in time."

1. In relation to the decision of the Employment Judge that HMRC had fully complied with the Order, the Employment Judge observed:

"The Claimant also makes a further application for the tribunal to review its decision that HMRC has fully complied with the order. The decision was made that this application should not be considered at this stage of the proceedings as the matter has been listed for a preliminary hearing on the 17 January 2017 to consider the Respondent's application to strike out the claim on the ground that it has no/little reasonable prospects of success. …"

1. Accordingly, although not expressly stated, the Employment Judge did not reconsider the Order that had previously been made by her on 24 October 2016. The Claimant, has explained that the issue to which the documents and information requested goes concerns the detriment of the alleged failure by the Respondent to deal with his grievance. The grievance was or included complaints that his concerns expressed in his protected disclosures, which were of very serious matters, were not investigated properly nor taken seriously or dealt with appropriately. The purpose of the requested information is to show that the Respondent was aware of the need to and had meetings with or discussed with HMRC the two leasing schemes, which were the subject of the Claimant's protected disclosures. Further, the Claimant suspects that a partner of the Respondent involved in the dismissal of his grievance participated in discussions with HMRC at the time he made his protected disclosures regarding the schemes yet that partner did not initially acknowledge or readily acknowledge those communications with HMRC.

1. There are two grounds of appeal from the Order of 24 October 2016 and the refusal of reconsideration of that Order on 13 December 2016. These are: first, the decision of the Employment Judge to vary her Order to allow HMRC to redact passages in the material and withhold documents. It is said that decision was made in error. Secondly, it is said that the Employment Judge erred in holding that HMRC had complied with the Order of 1 August 2016. The Claimant contends that answers given by HMRC to the ordered appendices are incomplete and unsatisfactory. The application to the Employment Judge was for answers to questions in the form of a Schedule with the name of the individual involved, the question to which an answer was sought and cross-referenced to paragraphs of the ET1. The Employment Judge found that HMRC had given satisfactory responses and had complied with the Orders in circumstances in which those responses were short in the extreme.

1. Having heard the submissions of the Claimant and Mr Poole, counsel for HMRC, recognising the wide margin of discretion given to Employment Tribunals and Employment Judges in case management decisions, which these were, in my judgment the Employment Judge erred in refusing to reconsider her decision that the answers given in the HMRC response of 14 September 2016 complied with the Order of 1 October 2016 to answer questions posed in appendices 1 and 2. For the most part the answers given by HMRC do not give the source of the information provided or the searches or attempts made to find out the answers to the requests made. For example, the first response given to questions 1 to 7 of appendix 1 was, "HMRC has no record or evidence of the meeting having taken place". This was in response to a question about a meeting at Barclays with the Respondent on or around 12 May 2012.

1. So far as the challenge to the refusal to reconsider the Order that there can be redaction to protect sensitive or damaging information, following submissions and argument today agreement has been reached between the Claimant and HMRC.

1. The outcome of the appeal is that the appeal from Employment Judge Sage's refusal to reconsider the question of HMRC's compliance with the disclosure Order of 1 August 2016 is allowed.