Tending to show
Labour & European Law Review Weekly Issue 449 09 December 2015
When blowing the whistle, claimants have to have a “reasonable belief” that “tends to show” (in this case) a breach of a legal obligation. In Soh v Imperial College of Science, Technology and Medicine, the Employment Appeal Tribunal (EAT) held that workers do not have to show that they believe that X or Y is true, just that they reasonably believe that the information they disclosed tends to show that X or Y is true.
Dr Soh was offered an appointment as a full-time lecturer, subject to a two-year probationary period. Following negative reviews from students, she was issued with a warning to improve but she again received adverse reviews after a second series.
After a formal probation review panel meeting, it was recommended that her appointment should not be confirmed, but following a second-stage review meeting, her probation period was extended for a year. She then alleged that one of her academic supervisors, Dr McPhail, got better feedback because he “spoon-fed” the students by indicating what would be in the exam. After an investigation, Dr McPhail was acquitted of malpractice and Dr Soh was dismissed in January 2012 for gross misconduct.
Dr Soh claimed (among other things) that she had been dismissed because she had blown the whistle on Dr McPhail. She argued that she had made protected disclosures which tended to show a breach of a legal obligation on lecturers not to undermine the integrity of the examination system. The information given to her by the students tended to show that Dr McPhail had breached that obligation by giving specific information about what would be in an examination question.
Section 43B(1) of the Employment Rights Act 1996 states that a qualifying disclosure means any information which, in the reasonable belief of the worker making the disclosure, tends to show that someone has failed to comply with a legal obligation to which they are subject.
Section 43C(1) states that a worker must make the disclosure in good faith.
The tribunal held that although Dr Soh made the remarks about Dr McPhail in good faith (she genuinely believed what he did was wrong and also ensured he got better feedback from students), she did not believe that he was undermining the integrity of the exam system and was therefore in breach of a legal obligation.
Her claims of detriment and dismissal for making public interest disclosures could not therefore succeed. However, the tribunal found that Dr Soh had been unfairly dismissed, that there should be a reduction of 20 per cent for contributory fault and in respect of her claim for expenses, awarded the sum of £2,182.92. Dr Soh appealed against the dismissals of her claims and the employer appealed against the tribunal’s findings in her favour.
The EAT clarified that section 43B(1) requires workers to show that they reasonably believe that the information they disclosed tends to show that X or Y is true, not that they necessarily believe that X or Y is true.
It therefore held that in considering whether there were protected disclosures, the tribunal was wrong to hold that Dr Soh had to show she reasonably believed that Dr McPhail had breached a legal obligation. Instead she just had to show that she reasonably believed that the information she disclosed tended to show that he had. As such it had not applied the statutory test correctly and the appeal had to be allowed on that basis.
However, the tribunal had applied the law correctly in relation to whether Dr Soh had acted in good faith. Just because she made her allegation as a defence to a complaint did not automatically mean she made it in bad faith.
The EAT allowed both appeals and remitted the case to a freshly constituted tribunal.