At your discretion

Goode v Marks and Spencer

Workers who blow the whistle have the right not to be dismissed if they can show they made a “protected disclosure” under the Employment Rights Act 1996 (ERA). In Goode v Marks and Spencer, the Employment Appeal Tribunal (EAT) said that expressing an opinion about changes to the terms of a discretionary enhanced redundancy scheme could not amount to a protected disclosure.

Mr Goode’s union, GMB instructed Thompsons to act on his behalf

Basic facts

In July 2008 Mr Goode, a database manager for Marks and Spencer, learned of proposed changes that the company wanted to make to the discretionary enhanced redundancy scheme. This involved changing the multiplier for each completed year of service from 2.5 to twice the statutory formulation and to reduce the cap from 70 to 52 weeks’ salary.

Mr Goode expressed his “disgust” to his line manager, who suggested he should contact the staff representative body (BIG). Mr. Goode e-mailed the chair of BIG and later sent an email to the Times from his work email saying that the “cost cutting exercise” would result in staff redundancies. He was subsequently identified as the author of the email and dismissed.

He claimed, among other things, that his dismissal was automatically unfair because he had made a “protected disclosure” about changes to his redundancy terms (which he claimed were contractual) under the ERA.

Relevant law

Section 43B ERA defines a "qualifying disclosure" as “any disclosure of information” which the worker reasonably believes and which shows 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 states that the disclosure must be made to the person’s employer or if certain conditions are satisfied, it can be made under section 43G to someone else if “the worker has previously made a disclosure of substantially the same information to his employer…"

Tribunal decision

The tribunal said that complaining to his line manager and to the chair of BIG about changes to the discretionary scheme did not amount to making a “protected disclosure”, because Mr Goode had not disclosed any information showing that Marks & Spencer were in breach of a legal obligation.

Instead the tribunal decided that "The redundancy scheme was discretionary. Even if it was not discretionary there was no information disclosed to the effect that there was likely to be a breach of a legal obligation. All that was disclosed is that the Respondent wished to discuss proposals relating to the scheme”.

EAT decision

And the EAT has now dismissed his appeal. It said that the information that Mr Goode disclosed to his line manager was simply “information” in the sense of being a “statement of his state of mind, namely that he was "disgusted" with the proposals which had been put forward”.

That meant that there could not have been a disclosure to the Times as section 43G requires there to have been a “disclosure of substantially the same information” to the employer. As there was no “disclosure” to the employer, there could not have been a “disclosure” to the Times.