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Imagine the following hypothetical case in the UK.

An employee X raises concerns while employed at an organisation Z. X loses their job at Z, discovers later that those concerns fall under the legal definition of whistleblowing, X takes Z to a tribunal. A key question a tribunal might have to decide could be "was X indeed whistleblowing?"

Suppose there was a prolonged investigation of X's concerns done at organisation Z over a couple of months involving several people. Suppose further that document disclosure was done between X and Z, but virtually nothing was provided from Z about that very investigation.

Suppose further that X specifically and repeatedly asked Z for all relevant documentation produced by that investigation, but X was told they had got everything they were going to get (viz., nothing).

How might a tribunal view this?

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  • This question has attracted some close-votes for being "opinion based". I disagree with that - disclosure rules are a part of the court system and are usually well defined in the court's procedure rules and case law. This seems like a very reasonable question to me.
    – JBentley
    Commented Aug 10 at 15:57
  • (UK) Failure to disclose relevant documents can have serious consequences, including adverse inferences being drawn by the tribunal, cost orders, or, as the Kaur case shows, even the striking out of a party's case.
    – Michael Harvey
    Commented Aug 10 at 21:00
  • @JBentley "How might a judge view [scenario]?" is usually a question of opinion.
    – Trish
    Commented Aug 10 at 21:45
  • @Trish All questions about a point of law are a matter of opinion in that sense, since they are always open to interpretation by the court as well as the fact that for many legal questions the court has discretion. In reality though, "how might a court view this?" is equivalent to "what is the law on this?" since it is the law that will inform the court's view. Such a question can be answered along the lines of; "the law says X, the factors that the court will consider are Y, and in previous similar cases the courts have ruled Z". Note that none of that involves opinion.
    – JBentley
    Commented Aug 11 at 9:31

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Tribunals vary greatly on the degree of disclosure they expect between parties generally or in any particular case. The degree of disclosure may be dictated by statute or be driven by the common-law requirements of procedural fairness. If the latter, this will depend on factors like the right or interest affected, the nature of the tribunal decision being made, the importance of the decision to the person demanding disclosure, whether the Tribunal itself has provided rules concerning disclosure, whether the party has availed themselves of Tribunal processes to compel disclosure, etc.

Therefore, how a Tribunal would view the circumstance you describe is unknowable.

However, in the scenario you have crafted, I question the relevance of the material from the investigation. If employee X's allegation is that they were fired for whistleblowing, what is relevant is the concern employee X raised to the employer and the employer's resulting actions against that employee X. Whether the employer also happened to investigate those concerns does not seem relevant to any whistleblowing protection regime I am aware of.

Whistleblowing is defined based on what is communicated from the employee to the employer. See e.g. the Public Servants Disclosure Protection Act, defining protected disclosures in relation solely to what was communicated to the employer:

any information that the public servant believes could show that a wrongdoing has been committed or is about to be committed, or that could show that the public servant has been asked to commit a wrongdoing

The Act then also protects against reprisals for such protected disclosures.

None of this depends on whether an investigation was conducted nor the outcomes of any such investigation.

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  • (+1) I would also add that in some cases, the investigation status and result should not be disclosed to the employee. Imagine that Alice reports to HR her suspicions that Bob is sexually harassing Charline. Whoever investigates should certainly not tell Alice anything about Bob or Charline’s testimony.
    – UJM
    Commented Aug 13 at 12:03

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