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

The Tribunal rejected that evidence and concluded in paragraph 26:

“The Tribunal’s conclusion in this regard was unanimous and emphatic. The Tribunal concludes the Claimant had always had all of the emails he had requested of the Respondent."

Further, in relation to his evidence before the Tribunal or a statement that the Claimant apparently made, that he had not realised his disclosure obligations extended to electronic emails, as opposed to physical copies, the Tribunal said:

“… it was unbelievable he would draw a distinction between his obligation to disclose, or his entitlement to receive, physical not electronic documents. He was a Group Financial Director of a PLC, working in an electronic age”.

The Tribunal then went on to deal with an allegation that the Claimant had raised in his witness statement. Now I will attempt a brief excursion into the background, before I deal with how this arose in front of the Tribunal.

The position is that the Tosca email was not relied upon, as I understand it, in the Claimant’s pleaded case before the Tribunal. The exclusion from the Tosca meeting later in August was relied on, but not the Tosca email specifically. Neither party disclosed any version of the Tosca email in disclosure. There was no reference to the Tosca email in the Claimant’s first witness statement in front of the Tribunal, although there was evidence about him being excluded from the meeting.

The Tosca email was then disclosed by the employer company in or about February 2019. On 24 September 2019, Ms Nahal gave a statement, responding to the Claimant’s statement concerning his exclusion from the meeting. The thrust of the evidence, and this was the thrust of the employer company’s case in the Tribunal, was that the exclusion was instigated by Tosca and not by Mr Shah. That was crucial, of course, to whether the exclusion was part of detriment occasioned to the Claimant and, therefore, supportive of his case that he had been wrongfully treated as a whistleblower. There was no reference to the Tosca email in that witness statement.

Then came the event which drew the Tosca email into the proceedings. That was a witness statement of the Claimant, undated in the bundle in front of me, and indeed unsigned, but the date given on the unsigned version is 5 January 2020. That contains in an unnumbered paragraph on page 2 of the witness statement, the following words (in which “Amrit” refers to Ms Nahal and “Kiran” refers to Mr Shah):

“The document page 1441 purported to be an email invitation re Tosca, 2 August, from Amrit and which is evidence in this case as being presented in a form materially inconsistent with the original document and Amrit must know that. The authentic original document will show the invitation was made to both Kiran and I, not Kiran alone.”

That is an allegation that was made by the Claimant in those proceedings. It is self-evidently an extremely serious allegation, and in consequence of it, as the evidence in front of the Tribunal showed, what happened was that Ms Nahal felt that she needed to report the matter to her professional regulatory body, the Financial Conduct Authority, and also her conduct was subjected to an internal investigation by her employers, Allenby, to determine whether in fact she had indeed doctored or forged the email, which procedure in due course, on the evidence, acquitted her completely.

The Tribunal dealt with those matters in paragraph 29 and again, in light of the time that it would take, I will not read the whole of that paragraph. It includes the findings in the middle: “The Claimant maintained the version he had seen was different yet he confirmed to the Tribunal he had copies of all emails and failed to provide his version of the original to the Tribunal or to clearly explain why this could not be done”. It goes on to say that the Claimant maintained that the evidence had been tampered with, and then it rehearses Ms Nahal’s evidence that she self-reported to the FCA and that there had been a subsequent investigation into the allegation, and that as a result she had been exonerated as the original email was found to have been unaltered. It records that this evidence was not challenged and was accepted by the Tribunal.

The Tribunal further referred to this matter at paragraph 77 when it rehearsed the history in the context of a factual narrative, starting off by saying that Ms Nahal sent an email invitation for a meeting with Tosca on 2 August. That is page 1441, the very document that Mr Dowding had referred to his witness as being doctored.

Paragraph 77 rehearses Mr Dowding’s allegations that the document was fake and his levelling of blame against Ms Nahal for that and her denials of it. Again, the full paragraph can be taken as being read into this ruling. It ends up with these words: “The Tribunal accepted the evidence of Ms Nahal in this regard … Her explanation was clear and consistent with the email trail and otherwise innocuous”.

Finally, the Tribunal again alluded to this at paragraph 134 of its judgment, beginning with the words “The evidence of Ms Nahal was believed over the Claimant in relation to the Tosca meeting”, and ending with the words “The claimant was not subjected to a detriment, the claimant was not ostracised”. That is the Tribunal’s finding on the fundamental issue of whether the Claimant was occasioned detriment.