The High Court held in Nissan v Passi that a whistleblower is not entitled to remove confidential legal documents from their employer for the purpose of taking legal advice.
Background
Mr Passi was employed by Nissan from 2012 to 2020 as a solicitor until he was dismissed on grounds of misconduct. Nissan say that Mr Passi was dismissed because he failed to follow lawful instructions and procedures and had destroyed the necessary trust and confidence of the relationship. Mr Passi says that he had made protected disclosures relating to certain high profile and much publicised arrests and related events and that he was victimised as a result by Nissan, his employment moved from his settled home in Japan back to the UK against his wishes and finally dismissed.
On termination of his employment Mr Passi was reminded of his obligation to deliver up property belonging to Nissan, including documents. However, it was discovered in the course of employment tribunal proceedings that Mr Passi initiated, that he had taken, and refused to return or delete, over 100 sensitive and confidential documents belonging to his ex-employer. He said he had taken them in order to seek legal advice, and wanted to retain them because he lacked confidence that they would be disclosed in his pending tribunal claim.
Nissan applied for an injunction for return of the documents on the basis that unquantifiable damage would be caused if the documents and the information came into the public domain.
Decision
The High Court held that an interim injunction should be granted for return and deletion of the documents. The ex-employee had no proprietary interest in the documents, whereas the ex-employer did. There was no justification for allowing the ex-employee to ‘pre-empt’ what might happen during disclosure on the assumption the employer would not comply with its obligations.
The High Court held that an individual is not prevented from using confidential information that has developed into part of his general skill, experience and knowledge for subsequent employment, as this would unreasonably interfere with his right to work. However, this did not apply to this case. Mr Passi was not seeking to use any confidential information in the exercise of his right to work and did not have any reason to be using confidential information.
What this means
This case confirms that employees are not entitled to take or retain confidential documents for the purpose of pre-empting disclosure and seeking legal advice.
The High Court placed particular strength on Nissan’s arguments regarding ownership and entitlement to the documents. Employers should ensure that employment contracts include express terms regarding the use and treatment of confidential information and the return of company property and information on termination of employment.
For more information, please contact a member of the Employment Team.
