To have and to hold: Can ex-employees retain documents for the purpose of litigation?

01 Mar 2022

Most employees expect to return their employer’s documents when the employment comes to an end. However, what about where there are allegations of corporate wrongdoing: should the employee be able to keep copies of the documents as evidence?  Is the position different when the employee is also claiming that they have made a protected disclosure (‘blown the whistle’ in everyday language); does the fact that they are seeking legal advice in relation to the documents make any difference?

The recent case of Nissan Motor (GB) Ltd v Passi (read the full Decision here) makes interesting reading, both in relation to these questions and in respect of the wider reporting of the allegations surrounding the former Nissan Chairman, Carlos Ghosn, his arrest, detention, and escape-in-a-box to Lebanon.

Focussing on the legal case, Nissan issued proceedings against a former employee, Solicitor Ravinder Passi, for the return of documents and destruction of all copies.  Mr Passi had been employed between 2012 and 2020, and for most of that time was seconded to work in Japan.  He has previously brought two sets of proceedings relating to his treatment while employed and then his dismissal; in relation to both he argued that his treatment was due to having whistle-blown.

Through the process of disclosure in the earlier proceedings, Nissan became aware that Mr Passi had retained documents which it argued contained highly sensitive confidential information.  Mr Passi confirmed that he had retained a number of documents, and that he had done so variously to take legal advice and because he was concerned that Nissan might not disclose them.  He admitted that a limited number of documents had been shared with a journalist regarding the allegations in respect of which the whistle-blowing disclosures had been made.

Although only at a preliminary hearing in the High Court, the Judge considered that Nissan had a strong case to argue that the documents were its property, and so was entitled to an order for their return.  The Judge gave short shrift to the argument that the former employee had any legal right to retain them, and in the absence of that they had to be returned.  He did not consider that seeking legal advice was a legitimate reason for the documents to be retained, even on a regulated basis (for instance, it could have been agreed that the documents would be put to no purpose other than seeking such advice or for use in the litigation itself).

Further, the Judge was not persuaded by the argument that ordering the return of the documents would in some way interfere with the Employment Tribunal proceedings; he considered the process of disclosure to be a separate one, subject to its own rules and process, and that it was not open to one party to seek to circumvent those by retaining documents which did not belong to them.

Comment:

While the decision is one which will come as a relief to employers and has the apparent benefit of clarity, it is not one which is without difficulty.  While of course capable of misuse, the whistle-blowing- legislation does provide an important safeguard against corporate of organisational wrongdoing.  In such situations, it is perhaps unlikely that the organisation will chose to disclose ‘unhelpful’ documents.

In adopting a very strong focus on the ownership of the documents and holding that above any public interest argument, arguably the Judge missed the opportunity to strike a more contemporary balance.  
In light of the lessons from #metoo and other abuses of power, it is quite possible that this decision will be revisited in the near future. 

For further advice in relation to the above article, our Employment Group will be able to assist you. Please contact Rustom Tata, Partner and Head of Employment, by email or by phone on 020 7822 1590.

Further reading

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