Hibbins v Hesters Way Neighbourhood Project
If a worker blows the whistle about something their employer has done, they can make a claim under the whistleblowing legislation. But what if they blow the whistle on a third party? In Hibbins v Hesters Way Neighbourhood Project (IDS 865), the Employment Appeal Tribunal (EAT) said that the legislation extends to any “legal person” not just an employer.
Basic facts
Ms Hibbins was employed as a language teacher by Gloucestershire Neighbourhood Project Network, but worked one day per week for Hesters Way Neighbourhood Project which was loosely connected to it.
In December 2006 she read a press report in which the police asked for information about a named suspect in a rape case. Ms Hibbins realised that she had interviewed him as a potential student and gave the police his contact details.
She then told the project’s operational and development manager what she had done and although he was initially supportive, they subsequently had a difficult conversation in which she alleged he got very angry. Ms Hibbins resigned but worked out her notice until March 2007.
She then brought a tribunal claim under the whistleblowing provisions of the Employment Rights Act 1996 (ERA), arguing that providing the police with the suspect’s contact details amounted to a “qualifying disclosure” and that she had been subject to a “detriment” as a result. Her employer said that she was not protected by the Act because it only applied to a “wrongdoing” or “failure” on the part of the employer.
Relevant law
Section 43B(1) of the ERA states that a “qualifying disclosure” is any disclosure of information which tends to show “that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.”
Section 43C (1) states that the qualifying disclosure has to be made in good faith to the worker’s employer or “where the worker reasonably believes that the relevant failure relates solely or mainly to … the conduct of a person other than his employer."
Tribunal decision
The tribunal agreed with Ms Hibbin’s employer. It said that the whole point of the legislation was to protect employees who drew attention to something their employers had done wrong.
In support of this approach, it cited the case of ALM Medical Services v Bladon which noted that “the self-evident aim of the provisions is to protect employees from unfair treatment (i.e. victimisation and discrimination) for reasonably raising in a responsible way genuine concerns about wrongdoing in the workplace.”
EAT decision
But the EAT disagreed. It said that the whistle blowing provisions do not just apply to situations where the "wrongdoing" or "failure" relates to something that the whistleblower’s employer has done.
First of all, it said that the reference in section 43B(1) to “a person” must mean that the legislation included any legal person, not just the employer. It concluded that “there is no limitation whatsoever on the people or the entities whose wrongdoings can be [the]subject of qualified disclosures”.
It also contrasted the wording in section 43B(1) with the wording in 43C(1), pointing out that for the employer to be right “it would only have been necessary for section 43C (1) (a) to refer to "a person" but the draftsman of the legislation clearly envisaged that the word "a person" would not suffice and thus instead used the words "his employer" to limit the meaning of that provision”.
In any event, it pointed out that if the Act only related to the conduct of an employer, section 43C(1) would be unnecesary.
Finally, it said that if the tribunal was right, employees who blew the whistle on, say, market abuse or fraud by a business where they worked but which was not their actual employer would not be protected, and that would go against the whole point of the legislation.