Are whistle-blowers entitled to remove and retain their employer’s confidential documents?

Not in case of Nissan v Passi which recently came before the High Court.

Nissan v Passi

Passi raised claims against his ex-employer, Nissan, in the ET for unfair dismissal and whistleblowing detriment.

At the time his employment had ended, Passi told Nissan that he had returned ‘everything he had’.  However during the proceedings it became know that Passi had taken and retained over 100 sensitive and confidential documents belonging to Nissan.

Nissan pursued an application against Passi for the return of these documents.

Passi argued that he had taken them to enable him to seek legal advice and that he had retained them thereafter because he did not trust that Nissan would disclose them as part of the tribunal process.

The High Court granted an injunction and ordered the return and/or destruction of the documents by Passi.  In reaching this decision, the High Court found that Passi had no right of ownership in the documents.  As a matter of logic, he had no right to possess them.  In relation to his claim that Nissan would not disclose them when asked, the High Court were clear that Passi was not able rely on this suspicion to justify retaining documents he had no right to possess.

Whilst the judgment will give comfort to employers who can expect courts to uphold their right of ownership in documents in situations such as this, it should also serve as a reminder of the importance of ensuring that all confidential and sensitive documents are stored correctly and access restricted to those who need access to carry out their role.  Off-boarding processes should also be improved, to ensure that documentation is identified and returned and if not, steps taken to ensure employer property is recovered.