Be reasonable

Babula v Waltham Forest College

The law sets out the protection to which workers are entitled when they “blow the whistle”, if they are dismissed or subjected to any other disadvantage.

In Babula v Waltham Forest College (IDS 826), the Court of Appeal said that even if employees are wrong in the belief that led to the disclosure, they can still rely on the legislation as long as their belief was reasonable and made in good faith.

Basic facts

Mr Babula, an American citizen, worked as a lecturer for the college between January and August 2004. In May 2004, he took over a business studies course from another lecturer - Mr Jalil - only to discover the students were way behind with their work.

The students complained that this was because Mr Jalil had used the time to teach religious studies, and had told Muslim students that he wished a “September 11” event would happen in London. Although some students had complained to the head of the school, no action had been taken.

Mr Babula believed that this amounted to incitement to racial hatred contrary to section 18 of the Public Order Act 1986 (POA). Having tried unsuccessfully to raise the matter internally, he contacted the CIA and FBI, saying that he feared Mr Jalil might go on to incite racial hatred elsewhere or even commit an act of terrorism.

He then wrote to the college to inform them of his actions. It responded in such a way that he felt he had no alternative but to resign and claim unfair, constructive dismissal.

The law

Section 103A of the Employment Rights Act 1996 (ERA) states it is automatically unfair to dismiss someone who makes a protected disclosure.

But not all disclosures qualify for protection. To do so, the worker must have a “reasonable belief” that the disclosure “tends to show” one or more of the categories listed under section 43B(1)(a-f), including:

• the commission or likely commission of a criminal offence (in this case, a breach of the POA) – 43B(1)(a)
• that someone (in this case, the college) who is subject to a legal obligation is unlikely to comply with it - 43B(1)(b)

Tribunal and EAT decisions

The tribunal said that Mr Jalil’s comments did not amount to a breach of the POA because they were to do with religion, and not race, which the POA did not cover at that time.

Nor was there a qualifying disclosure under section 43B(1)(b), as the college’s equal opportunities policy did not place it under a legal obligation to report his comments, as the policy did not refer to religious discrimination.

Relying on the case of Kraus v Penna, the tribunal concluded that if the employer is not actually subject to an obligation, then just because the worker believed they were does not “render the disclosure a protected one within sections 43A and B.”

The Employment Appeal Tribunal (EAT) said the tribunal had interpreted the law correctly.

Court of Appeal decision

The Court of Appeal, however, took a different view. It said that the EAT in Kraus v Penna had misinterpreted section 43B(1) and that the whistleblower only has to establish a reasonable belief that the information being disclosed “tends to show” one or more of the six subsections in 43B(1).

It concluded that “the use in the statute of the word "likely" does not … import an implication that the whistle-blower must be right, or that, objectively, the facts must disclose a likely criminal offence or an identified legal obligation.”

In this case, it said that it was irrelevant that the information Mr Babula was disclosing turned out to be wrong. All that mattered was that “his belief is reasonable, and the disclosure to his employer made in good faith.”

The case was remitted to the tribunal for a rehearing.