Muchesa v Central and Cecil Housing Care Support
Workers who want to blow the whistle to outside bodies must do so in good faith, reasonably believing the allegation to be true. In Muchesa v Central and Cecil Housing Care Support, the Employment Appeal Tribunal (EAT) said tribunals should consider whether the complaints were true and whether the whistleblower genuinely believed they were.
Basic facts
Miss Muchesa worked as a senior night carer at a nursing home for patients with dementia.
In January and April 2005, she claimed to have written a number of letters of complaint about standards in the home to its manager, Ms Rose who said she had never received them. Miss Muchesa also claimed to have had a conversation with the human resources manager in May 2005 about standards, but the tribunal found that this conversation had been principally about her own working conditions and relationships with other staff.
On 24 May 2005 the Council for Social Care Inspection (CSCI) made an unannounced visit, but reported no major concerns.
During the weekend of 27-30 May 2005, Miss Muchesa made some very serious allegations about standards in the home to the daughter of a resident. The daughter reported these to the GP who visited but found no signs of neglect. Miss Muchesa also rang the police and social services to make similar complaints.
Miss Muchesa’s employer then suspended her for misconduct on 31 May 2005 and eventually dismissed her in April 2006. During the time of her suspension she contacted CSCI to make complaints about the care of residents. It carried out another inspection, but again found no basis for her complaints.
Miss Muchesa claimed automatic unfair dismissal for making a protected disclosure (among other things) under section 103A of the Employment Rights Act 1996.
Tribunal decision
The tribunal decided that Miss Muchesa had not been unfairly dismissed under section 103A because the disclosures on which she relied were not made in good faith and she did not “reasonably believe them to be true”.
Ms Muchesa appealed on a number of grounds, in particular that the tribunal was wrong to conclude that because she did not reasonably believe that the disclosures she made to the four external recipients were substantially true, they could not be protected disclosures.
EAT decision
However the EAT agreed with the tribunal that Miss Muchesa had not met the requirements stipulated in section 43G as she had not made the disclosures to the four external recipients in good faith and she did not reasonably believe the information disclosed to be "substantially true".
It also said in relation to the issue of reasonable belief that the tribunal had been “entitled, in reaching their decision, to consider whether the complaints were in fact true … and to regard their view of their truth or untruth as an important tool to the resolution of the issue before them of reasonable belief. The matters of fact of which Miss Muchesa had complained were matters of which she claimed to have direct personal knowledge; she was not relying on information from a third party; the truth of her allegations would naturally appear to be of greater weight than if this was a case of second-hand information.”
The tribunal was also entitled to ask itself whether she believed in “the truth of her complaints”. They decided that “she had not behaved in the manner in which she would have behaved had she reasonably believed in the truth of the complaints and was motivated by a genuine desire to protect the residents. She was not reasonably mistaken; she complained of events which had not occurred and for an ulterior motive of her own not connected with the care of the residents.”