It is unlawful for a worker to be subjected to a detriment or dismissed because they made a protected disclosure (often called whistleblowing). Although it can be difficult for tribunals to differentiate between an allegation and a disclosure of information when considering these claims, the EAT held in Cox v Adecco UK Ltd and ors that when doing so, they must assess any statement made by a claimant in light of the particular context in which it was made.
Basic facts
Mr Cox worked as an Education Health and Care Plan (EHCP) Assistant on an agency basis for the London Borough (LB) of Croydon through the auspices of a recruitment agency, Adecco UK. A manager at Croydon suggested that he apply for the job of EHCP co-ordinator and although he insisted he was not qualified, he was successful in his application. There was then some confusion about his job title but his pay was increased from January 2018 to a rate higher than that for an EHCP Assistant.
On 5 July 2018, Mr Cox wrote to Adecco alleging that it had leaked information about his pay to colleagues at Croydon, that he had been underpaid, and that staff were being put into jobs for which they were unqualified. Mr Cox then lodged tribunal claims alleging that, as a result of making protected disclosures to Adecco in emails and letters and in oral disclosures with local authority managers, he had suffered a detriment (a disadvantage) when his contract was terminated by Croydon on 6 July.
Relevant law
For a disclosure to be a “protected disclosure”, it must meet the criteria set out in sections 43B to 43H of the Employment Rights Act 1996. It must:
- be something that the worker had a reasonable belief was true
- be a qualifying disclosure (ie meeting at least one of the definitions under section 43B)
- be a disclosure of information (not just a threat, opinion or allegation), and
- be made in the public interest.
Tribunal and first EAT decisions
Mr Cox’s claims were struck out by the tribunal but upheld by the EAT which remitted them back for reconsideration. In the interim, Mr Cox submitted an application to amend his claim to allow him to rely on oral disclosures that he had allegedly made in meetings with managers at Croydon, among other things.
The tribunal allowed some aspects of his application but refused others because he had not provided an explanation for the delay in introducing these “entirely new facts”. In addition, it held that, as he had not mentioned these oral disclosures previously, the hardship caused to the parties in allowing the amendment outweighed the hardship to Mr Cox. In any event, it did not consider that a conversation with a local authority manager on 2 July 2018, in which he was allegedly told to “get rid” of certain emails (which he refused to do) could even constitute a protected disclosure.
Mr Cox appealed arguing, among other things, that by refusing to get rid of the emails at the meeting on 2 July, he was disclosing to the local authority manager his suspicion that “something was not right”. The tribunal ought therefore to have viewed this amendment in the context of the case it had already accepted, namely that he had made a protected disclosure to the same local authority manager at a meeting on or around 18/19 June, something he had described in detail in his original particulars of claim.
Second EAT decision
Rejecting the other grounds of the appeal, the EAT held that the tribunal was wrong not to allow Mr Cox to amend his claim to include the alleged disclosures made at the meeting on 2 July. Although the EAT acknowledged that he might not be able to show that this incident gave rise to a protected disclosure, it was possible to interpret his statement as reiterating the (alleged) earlier disclosure.
Although it can be difficult to differentiate between an allegation and a disclosure of information, the EAT held that it was important to assess a statement in light of the particular context in which it was made. That being so, the tribunal was wrong to conclude that Mr Cox’s statement could not amount to a protected disclosure and it remitted the matter for reconsideration.
The EAT also said the tribunal had failed to demonstrate that it had adequately considered the balance of hardship on the parties regarding the amendment.
Comment
The context of when a disclosure is made (when, how, to whom, what had been said/done previously and afterwards) is understandably going to be relevant when a tribunal decides whether or not it is a protected disclosure.
The EAT decision in this case had been made five years after the claim was submitted. The claim still hasn’t been heard in full. Much time can be spent arguing about technicalities during the tribunal process.
When a worker is blowing the whistle, it is helpful to set out their concerns in writing to the employer and say why they believe that the issue they are reporting is a qualifying disclosure. For example, if they believe that the employer has broken the law then it would be helpful if the worker could say what law(s) have been broken and provide any evidence they have that supports that concern.
It is important that these facts are then referred to in the ET1 claim form in order to try and avoid lengthy disputes about technical arguments.