For a whistleblowing claim to succeed, the claimant has to show a reasonable belief that there has been a breach of a legal obligation, among other things. In Kirby v Glasgow Caledonian University, the Employment Appeal Tribunal (EAT) held that the question for tribunals was not whether the claimant had disclosed facts or simply made an allegation but whether they had made a disclosure that fell within the legal definition.
Professor Kirby, the director of the Centre for Social History, received an application for conference funds from a colleague, Dr Greenlees. After she submitted her claim, he asked her for more information which she provided. However, she was unhappy about the request and felt that Professor Kirby was hounding her. In general, his relationship with other colleagues was not good, so much so that some of them had tried to remove him as director of the centre.
He then asked the finance officer and the Dean of the School of Business to investigate whether there had been an irregularity. They concluded that Dr Greenlees’ conduct was inept rather than dishonest. He then referred the matter to more senior financial officers who concluded that although Dr Greenlees’ actions showed a lack of understanding of financial procedures, they did not amount to financial misconduct.
Professor Kirby lodged a tribunal claim alleging that that he had suffered various detriments because he had made disclosures about the conduct of a colleague, among other things. For its part, the university argued that, prior to making these disclosures, a toxic relationship already existed between him and other staff members and any detriment he had suffered had nothing to do with the disclosures.
Section 43B(1) of the Employment Rights Act 1996 provides protection where in the “reasonable belief” of the worker making the disclosure, they can show “that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he [sic] is subject."
Although the tribunal agreed that Professor Kirby had disclosed information, it dismissed his claims on the basis that he had not done so “in the reasonable belief that a breach of a legal obligation had occurred”. Indeed, he had explicitly stated at the time of the disclosure that he believed Dr Greenlees had committed “a sin of omission, a muddle really”. In other words, he did not believe that she had acted unlawfully. It also accepted the university’s submission that the rancour between Professor Kirby and his colleagues was the true cause of the treatment meted out to him.
Professor Kirby appealed, arguing that the tribunal had interpreted the decision in Cavendish Munro Professional Risks Management Ltd v Geduld to mean that a worker did not have protection if the disclosed beliefs or opinions were “short of certainties”. Section 43B(1) on the other hand, only required the worker to have a “reasonable belief” that an unlawful act had taken place, thereby supporting the proposition that a worker need not have reached a definite view as to whether an unlawful act had occurred. The subsequent decision by the Court of Appeal in Kilraine v Wandsworth LBC (weekly LELR 587) confirmed the approach that the disclosure did not have to constitute a “conclusive belief”.
Dismissing the appeal, the EAT held that it was entirely “speculative” to suggest that the tribunal interpreted Cavendish and Kilraine as rival authorities. Instead, it had treated them as being consistent with one another, concluding that the question to be asked was simply whether there had been a disclosure of information.
Rather than focusing on the question of whether Professor Kirby had disclosed facts or made an allegation, the tribunal had correctly concentrated on whether he had expressed a belief that Dr Greenlees had acted unlawfully and whether he had a reasonable basis for that belief. The tribunal had not, therefore, constructed a “conclusive terms” test.