In order to decide whether a claimant has made a qualifying disclosure (blown the whistle), tribunals must follow a series of specific steps. In Martin v London Borough of Southwark, the Employment Appeal Tribunal (EAT) confirmed the need for tribunals to adopt a structured approach when assessing whether a disclosure satisfied the requirements under the Employment Rights Act 1996 (ERA).
Mr Martin, who worked at Evelina Hospital School, was concerned that teachers, including himself, were working in excess of the “statutory directed time”. He sent a series of emails, mostly to the head teacher, in which he queried the hours he and others were working, but also including references to statutory guidance and the School Teachers Pay and Conditions Document. In the emails he acknowledged that he might “be missing something” and asked for advice and guidance as how to best progress the matter.
He alleged that he made five protected disclosures and had been subject to a detriment as a result.
Section 43B(1) of the ERA states that a “qualifying disclosure” means “any 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 wrongdoing including criminal offences, failing to comply with a legal obligation, miscarriage of justice, endangerment of health and safety, damage to environment or the deliberate concealment of any of these.
The tribunal rejected Mr Martin’s claim that he had made protected disclosures finding in relation to each that they did not amount to a qualifying disclosure.
The tribunal found in relation to the first that Mr Martin had raised a concern, in relation to the second that there was no breach of a legal obligation and that the third, fourth and fifth disclosures were not in the public interest. Since there were no qualifying disclosures Mr Martin’s claims fell at the first hurdle.
Upholding the appeal, the EAT found that the tribunal had not adopted the well-established “structured approach” in order to decide if there had been a qualifying disclosure. In particular, it had not considered in relation to each:
- Whether there had been a disclosure of information
- If Mr Martin had a belief the disclosure was in the public interest
- If so, whether that belief was reasonably held
- If he had a belief that the disclosure tended to show that there was a wrongdoing
- If so, whether that belief was reasonably held.
As a result, the tribunal made several errors. Instead of considering whether Mr Martin subjectively held the belief there had been a breach of a legal obligation and whether that was reasonable, the tribunal had instead made an objective assessment, focusing on whether the information tended to show a breach of a legal obligation.
The fact that the disclosure was put in tentative terms (for instance, his acknowledgement that he might be missing something), did not mean that he could not have reasonably believed that the information tended to show a breach of a legal obligation. The fact that he had a personal interest in the disclosure or that he might benefit from it did not mean that the disclosure was not made in the public interest.
The EAT considered that the tribunal had made a rigid distinction between “information” and “allegations” contrary to the decision of the Court of Appeal in Kilraine v London Borough of Wandsworth (weekly LELR 587). This held that “information” could include “allegations” as long as they were sufficiently factual to support one or more of the factors listed in section 43B(1).
Given these fundamental errors, the EAT remitted the case to a newly constituted tribunal.
The case is a helpful reminder of the questions that need to be considered when first deciding if there has been a qualifying disclosure in the course of considering a claim that a worker has been subject to a detriment for making a protected disclosure.