Sellafield whistleblower ordered to pay costs after email tampering claims

ICO: Sellafield acted unlawfully

The ICO ruled in 2021 that Sellafield had acted unlawfully in the production of the letters. It breached GDPR and committed security breaches for, among other things, failing to supply McDermott with the letters after she had made a data subject access request.

The ICO made no findings, however, as to alleged tampering.

Sellafield has this week pleaded guilty to criminal charges concerning cyber security failings.

The nuclear facility pleaded guilty to a charge that it had failed to “ensure that there was adequate protection of sensitive nuclear information on its information technology network”, according to reporting from The Financial Times.

Computer Weekly has revealed a number of apparent cyber security vulnerabilities at Sellafield over the past year, including concerns over an “Achilles heel” local authority for the complex that in 2017 was hit by a ransomware attack linked to North Korea.

‘Unfounded’ tampering allegations

The letters have been a major point of contention in McDermott’s dispute with Sellafield and the NDA. She raised her claims about the letters’ production and of alleged tampering during a tribunal hearing in April when defending herself from allegations she had acted “unreasonably” in the legal action.

She claims the HR team were “colluding” to build a case based on concerns around her performance in the role, which Sellafield later relied on as a justification to terminate her contract.

McDermott told the tribunal that she had become “suspicious” of the letters since “senior HR managers had written letters at home on personal computers, printed them off, put them in their briefcase and took them into work”.

The letters were critical of her performance and she first learned of them when they were used against her at the 2021 tribunal. McDermott’s performance during her first year of freelance work at the Cumbrian site had previously been praised by Sellafield.

Sellafield subsequently used the critical letters against McDermott in the employment tribunal case she brought over the termination of her contract.

She alleges her contract was ended because she produced a report that was critical of Sellafield’s HR function, while Sellafield argues it was down to “performance issues”.

McDermott told April’s tribunal hearing that the letters had been “fabricated” and “tampered with”.

Missing metadata

She said the metadata for one of the three letters was “wiped” by legal representatives for Sellafield.

But the tribunal determined she was wrong to pursue this claim after a solicitor for Sellafield provided a “prompt explanation” and produced a “complete copy” of one of the letters that lacked metadata. Judge Robertson, who presided over the costs hearing, said in the decision that she was also wrong to suggest Sellafield had misled the tribunal.

“She asserted that the letters had ‘probably’ been fabricated,” Robertson found.

“She asserted that the way the letters had been prepared, and the removal of the metadata from one of them, amounted to ‘tampering’ with evidence. She maintained this allegation notwithstanding [solicitor] Ms Mills’ prompt explanation concerning the metadata and production of a complete copy.

“In further support of her case that the first and third respondents had acted dishonestly, she wrongly accused them of misleading the tribunal in their ET3 response.”

McDermott formally withdrew the allegations during the employment tribunal claim she brought against the nuclear complex, which was heard in 2021.

Sellafield has maintained that McDermott’s allegations are untrue, pointing to the 2021 tribunal judgment that found the letters were not fabricated.

Evidence lacking

This month’s tribunal decision found that “evidence was lacking” in McDermott’s tampering allegations. It described the allegations as “unfounded” and “based on nothing more than suspicion”.

“Allegations that a party to proceedings has acted dishonestly are a serious matter,” said Robertson. “Such allegations must be supported by the clearest and most cogent evidence. That evidence was lacking in this case.

“The claimant made unfounded allegations of fabrication of documents based on nothing more than suspicion, with no cogent evidence to support them.”

Legal bills

Sellafield and the NDA have racked up legal bills of nearly a million pounds in defending the claims brought by McDermott over the course of her prolonged legal battle.

A freedom of information request revealed last year that the two organisations’ overall bill for the publicly funded litigation stood at around £800,000, with VAT included.

However, a spokesperson for Sellafield and the NDA told Computer Weekly the two organisations felt an “obligation” to defend themselves and seek to recoup costs. “The claimant chose to bring claims against Sellafield Ltd and the NDA, and as taxpayer-funded organisations we have an obligation to defend against legal action and to consider associated costs,” the spokesperson said.

McDermott told Computer Weekly that case law advises against seeking costs orders where the costs a party has incurred are higher than the sum it’s able to claw back.

“Their response that they’re doing this to protect taxpayer’s money is a complete farce,” she said. “They knew the maximum they could recover was £40,000, so clearly it exposes that they’re not doing this in the public interest.”

‘Hounded’ for costs

McDermott says that Sellafield has “hounded” her “relentlessly and remorselessly” for costs since she brought her whistleblowing claim and began to speak publicly about what she believes to be a “toxic culture” at the facility.

“I think it’s an utter embarrassment to Sellafield that they have relentlessly and remorselessly hounded me for costs over nearly three years to recover £5,000,” she said.

A spokesperson for the two organisations said: “The judgements of the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal still stand that: the claims made against Sellafield Ltd in this case were entirely without substance, and there was no basis for claims against the NDA.”

The spokesperson also cited an earlier costs decision, saying: “The cost judgement states: the claimant is wrong when she says that the EAT accorded her the status of a whistleblower.”