KB-2023-003510 - [2025] EWHC 1755 (KB)

At paragraph 132, the Tribunal move on to the second topic, the so-called NAV/EVO project.

Then, at paragraph 133, the Tribunal move on to the third topic, which relates to a corporation tax return of the employer company. Paragraph 133 ends with these words: “There was no closer monitoring; the claimant was not subjected to a detriment. Alternatively, Mr Shah's 'closer' monitoring was entirely for reasonable and proper cause and unconnected to any disclosures entirely.”

Finally, at 137, the Tribunal returns to the topic of the PIP and says that it has already reached findings and conclusions about the PIP above, points out that putting someone on a PIP is not necessarily an act of detrimental treatment, and ends with these words: “The tribunal also concluded there was nothing irregular and certainly no causal link with the respondent’s reference to the claimant having purchased IRIS software.”

At paragraph 138, the Tribunal deals with the disciplinary hearing that the Claimant was notified about on 4 September 2017 and which took place on 11 September. This is a paragraph which has already arisen in relation to other aspects on the schedule. In the middle of that paragraph, the tribunal says this:

“There was a proper basis for the instigation of process. It was a key part of the Claimant's evidence he was being 'set up'. He said this more than once in relation to the requests made of him during the contract negotiations and the S&W e-mails. This troubled the Tribunal.” [They go on to explain why.]

Once again it appears to me that the Defendants’ submissions on these issues are well founded. It seems clear to me that (1) these matters were raised before the Tribunal, because they were part of the Claimant’s claim before the Tribunal relating to detrimental treatment in response to him being, on his case, a whistleblower and (2) the Tribunal not only dealt with them but dealt with them in some considerable detail.

So in my judgment, it would be an abuse for the claimant to be permitted to revive and go over that same ground again in these proceedings in the High Court.

The other aspect of the matter is that it is not really clear, and certainly not to a level to resist a strike-out, what relevance these allegations have to any of the Claimant's causes of action. The one topic that the Claimant has identified in his oral submissions to me is the potential relevance of these matters to his data subject access request.

In my judgment, however, that is not a sound argument. The territory the data subject access request refers to relates to the Claimant’s data being processed by the Defendant company, which was his employer, and in my view, to the extent that any documents on any topic processed by the company, the data controller, contained the claimant's personal data, the data contained in those documents would be responsive to a data subject access request, regardless of whether these particular paragraphs remained in the Particulars of Claim in these proceedings. It would be responsive in the sense that, as a starting point, the data would need to be produced. But, of course, the data controller may have answers in accordance with the data processing legislation as to why these documents or, indeed any other documents, should not be produced (as it is by production of documents that data controllers often elect to provide the data contained in them) or why data should not be produced in response to the request.

The final matter I just mention is it is quite clear to me from the documents that I have referred to and, indeed, the Claimant’s submissions, that a significant part of this body of documentation, whether drawn up for proper purposes, as the Defendants say, or for allegedly improper purposes (rejected by the Tribunal), as the Claimant says, related to seeking and obtaining legal advice, and on the face of it, all that material will be subject to legal professional privilege in any event.

I am not pre-judging that issue, because it may arise under the data subject access aspects of the Claimant’s claim, but I am far from convinced at the moment that much documentation relating to these matters would be susceptible to disclosure in these proceedings, even if these allegations remained in.

However, the primary consideration is that the very same allegations of, basically, a cooked-up case against the Claimant, were raised before and were clearly rejected by the Employment Tribunal, and in my judgment, as I have already said, it would be an abuse to attempt to relitigate those matters in these High Court proceedings.