By Jo Seery, Professional Support Lawyer
Case Judgement Summary:
Background
Mrs Capeling was employed by TFX Group Ltd as a National Sales Manager from March 2022. She was dismissed in September 2022 shortly before the end of her six-month probationary period, purportedly for poor performance.
She brought claims in the Employment Tribunal for automatic unfair dismissal and detriment that she was subject to a detriment for whistleblowing. Mrs Capelin relied on the following three alleged protected disclosures made during her employment.
- Documentation for the use of catheters said to have been made on 28 July 2022
- discrepancies in business targets said to have been made on 11 August 2022; and
- the absence of written contracts with its Dispensing Appliance Contractors (“DAC’s”) created risks to patient safety and may have been concealed. This was said to have been made on 29 August 2022.
Protected disclosure
Section 43B of the Employment Rights Act 1996 defines a protected disclosure as a “disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”
What the Employment Tribunal decided
The Tribunal rejected all three disclosures. It did not accept the Mrs Capeling’s evidence that she made the first disclosure nor that the second or third amounted to protected disclosures.
- As regards the third disclosure, the Tribunal rejected the Claimants evidence that she had told her employer that the failure to have written contracts with some of its DAC’s was putting the health and safety of individual patients at risk. Instead, the tribunal preferred the evidence of two of the Directors of TFX. Namely that the absence of a written agreement with DAC was not unusual and, as its standard terms and conditions would apply, it had no bearing on the health and safety of the end users. was not reasonable, particularly given her senior role and knowledge of the business.
Mrs Capeling only appealed against the Tribunal’s finding in relation to her third disclosure. She argued that it did qualify for protection and that the Tribunal had failed to engage with her subjective beliefs as to the significance of contractual obligations relevant to medical device regulations.
What the EAT decided
The Employment Appeal Tribunal dismissed the appeal and upheld the Tribunal’s decision. It found that Mrs Capeling’s claims were limited to her assertion that users’ health and safety was at risk as a result of the absence of 6 out of 10 contracts under s. 43B (d) and (f) of the ERA (see above). She had not provided any evidence which showed that she held a genuine belief that the absence of DCA contracts tended to show breach of a regulatory obligation and that was not her pleaded case.
In order to establish that she had made a qualifying disclosure she was required to show she had a genuine belief that the health and safety of any individual had been, was being or was likely to be endangered and that it was reasonable for her to hold that belief.
The EAT held that she had made a general unexplained assertion that there was a health and safety risk and taking into account her knowledge and experience as a National Sales Manager it was not reasonable for her to hold that belief.
The appeal was effectively an attempt to re-argue the evidence rather than identify any legal error.
Comment
The threshold for establishing a protected belief is a relatively low one. Nevertheless, this case is an important reminder of what must be established in order to show that a protected disclosure has been made. In particular
- Not every concern raised at work will qualify as whistleblowing. A general unexplained assertion that there is a risk is not enough. To claim protection a worker must provide clear, factual information, to show that there is a relevant health and safety risk or other wrongdoing such as a breach of a legal obligation
- In order to establish a belief that a wrongdoing has occurred and which is reasonable one for the worker to hold tribunals will take into account the worker’s role and knowledge including professional knowledge and access to information.
- Employers will often argue that concerns are too vague or unsupported — making it vital that workers clearly identify the legal obligation(s) or risk(s) engaged (e.g. health and safety, regulatory breach);
- set out why the concern demonstrates that risk in order to show that the disclosure goes beyond a general complaint and has real substance.
Had it been made clear that there was a breach of the regulatory Medical Device Regulations and Health and Social Care Regulations and there was genuinely and reasonably held belief that breach was relevant to a risk of harm to patients, the outcome may well have been different.
