High Court orders former employee to return confidential documents kept for taking legal advice

In the recent case of Nissan Motor (GB) Limited and Nissan Motor CO., Limited v Passi, the High Court considered the interesting legal issue of whether a former employee could retain confidential documents belonging to his former employer for the purpose of taking legal advice.

This is a situation that arises frequently, particularly where claimant is bringing an action against their former employer for e.g., unfair or constructive dismissal/ whistleblowing. The claimant naturally wishes to keep hold of the evidence and the employer understandably wants its confidential information returned.

Mr Passi was employed by Nissan in a senior legal position for several years. He was ultimately dismissed by Nissan in late 2020 on grounds of misconduct and paid in lieu of notice. Mr Passi brought proceedings in the employment tribunal claiming that he had been unfairly dismissed and had suffered detriments arising from whistleblowing.

During the tribunal proceedings, Mr Passi disclosed to Nissan a list of documents containing documents that he wanted to rely on for his case. Nissan alleged that a number of documents contained Nissan’s confidential information and/or privileged legal advice.

As such, Nissan applied to the High Court for interim injunctions requiring Mr Passi to return the documents to Nissan and to destroy all copies of the documents in his possession.

Nissan’s argument before the High Court was that a significant number of the documents referred to in Mr Passi’s list, constituted or contained confidential information as defined in his employment contract and that many of the documents contained legally privileged information. Nissan argued that under Mr Passi’s employment contract, he was (a) obliged to deliver the documents up and destroy any copies he retained upon termination of his employment and (b) he was prohibited from making any use of the confidential information for any purpose, other than the purposes of Nissan.

In response to the interim injunction application, Mr Passi argued that he had kept the documents in order to take legal advice and for the purposes of the employment tribunal proceedings.

The High Court granted the interim injunction and ordered Mr Passi to deliver up the documents to Nissan and refused to allow him to keep copies of most of the documents that had already been disclosed by him in his list of documents in the tribunal proceedings.

In coming to its decision to grant the interim injunction the High Court indicated that it could not see anything that appeared to give Mr Passi an arguable case that he had the right to retain Nissan’s documents or use them for the purposes of his own personal legal advice.

The High Court commented that the parties in employment tribunal proceedings have obligations to disclose to each other documents that they consider relevant to the case and therefore “It is not for a party that gains access to another party’s documents to decide unilaterally on the appropriate scope of disclosure of the other party’s documents”.

This case is very useful reminder for employers whose former employees decide to retain confidential information or documents after their departure in order to potentially support their employment tribunal claim. The case is in line with previous decisions which essentially say that claimants in tribunal proceedings should try and obtain relevant documents from their previous employer via the normal disclosure process, as opposed to retaining confidential documents themselves.

 Laurence Dunn, Partner