all in good faith? - cloisters · 25. making a `protected' disclosure is only one side of the...

ALL IN GOOD FAITH?

WHISTLEBLOWING LAW AND PRACTICE

EMPLOYMENT LAW ASSOCIATION

14 December 2011

1. These notes cover:

1.1. Introduction

1.2. Numbers

1.3. Who is protected?

1.4. A qualifying disclosure?

1.5. Methods of disclosure — overview

1.6. First-tier disclosure — legal advice

1.7. Good faith

1.8. Internal first tier disclosures

1.9. Second tier disclosures to Regulators

1.10. Third tier disclosures to the wider public

1.11. Detriment and dismissal

1.12. The reason why?

1.13. The burden of proof, legal and evidential

1.14. Interim relief

1.15. Strike out?

Introduction

2. The Public Interest Disclosure Act 1998 came into life as a Private Members Bill put

forward by a Conservative MP with the backing of the then Labour Government and

assistance in drafting from Public Concern at Work (PCaW). It came into force on 2

July 1999, inserting sections 43A to 43L (all in Part IVA), s.47B, s48(1A), s49(6) and

sl03A into the Employment Rights Act 1996. Its purpose, as reflected in the long

title, is `to protect individuals who make certain disclosures of information in the

public interest; to allow such individuals to bring action in respect of victimisation;

and for connected purposes." As Mummery LJ put it:

Sally Robertson Cloisters 1 ELA 14 December 2011

The self-evident aim of the provisions is to protect employees from unfair treatment (ie victimisation and dismissal) for reasonably raising in a responsible way genuine concerns about wrongdoing in the workplace.'

3. That has been translated into a relatively well established "generosity in the

construction of the statute and in the treatment of the facts" 2

4. The classic understanding of whistleblowing is found in the BSI PAS 1998:2008

Whistleblowing arrangements code of practice, developed by Public Concern at

Work (PCAW). This suggests that organisations make clear what types of concerns it

wants staff to raise within a whistleblowing policy and what they want dealt with as a

grievance or under a bullying or discrimination policy. PCAW suggests that

whistleblowing is where:

an employee has a concern about danger or illegality that has a public interest aspect to it: usually because it threatens others (eg customers, shareholders or the public. 3

5. From the early days of PIDA its scope in practice went wider, to embrace disclosures

concerning individual or private employment interests 4, as well as matters of real

public interest.

6. A number of tensions have been apparent. For many there is the principled desire to

focus emphasis on classic whistleblowing scenarios, to protect those who speak out

for the public good. For others, there is the very practical fear of an increase in

unmeritorious claims once the qualifying period for unfair dismissal is extended to 2

years from 6 April 2012. In answer to both, the Government now intend to change

the law to end the `loophole' of individual contract-based whistleblowing claims. 5

7. Also apparent is the move away from the generous approach found in Bladon to

concentrate on form rather than substance. Yet, perhaps ironically, Parkins v

1 ALMMedical Services v Bladon [2002] IRLR 807 @ [2]

2 Boulding v Land Securities Trillium (Media Services) Ltd EAT/23/06, 3.5.06, HHJ McMullen QC, @ [24]; Korashi v Abertawe Bro Morgannwg University Local Health Board EAT/424/09, 12.9.11, HHJ McMullen QC @ [32] As part of another line of authority, on the need to take a purposive approach, see BPplc vElstone [2010] IRLR 558, EAT, @ [34]

' PAS 1998:2008 @ 0.5

4 Parkins v Sodexho Ltd [2002] IRLR 109

5 23 November 2011; speech by Vince Cable `Reforming Employment Relations', on BIS website.


Sodexho, the case responsible for opening up PIDA to protect private interest

disclosures, depended on form, on a literal reading of the law.

8. Most recently in NHS Manchester v Fecitt & others [2011] EWCA Civ 1190, the

Court of Appeal has removed a swathe of protection for whistleblowers by focusing

on form. From the fact that PIDA does not enable detriment claims against

individuals (unlike the position in discrimination claims), Elias U finds that

"Absent any legal wrong by the employee there is no room for the doctrine [of vicarious liability] to operate" @ [33]

9. Thus if fellow employees, rather than `management' retaliate against a whistleblower,

someone in that position is likely to be unprotected unless the law is changed or the

facts permit a re-packaged approach to protection. 6 For example, by shifting focus

on the act at issue from the victimiser to the employer's act in deliberately failing to

take steps to prevent victimisation.

10. It is important to note that the need to help public whistleblowers is just as crucial

now as in the early days. Take for example the inquiry into the Mid-Staffordshire

NHS Foundation Trust.'

11. The initial inquiry was based, not on whistleblowing (internal disclosures had

apparently been ignored), but on the analysis of statistics. It focused on the

seemingly high mortality rates in patients admitted as emergencies. Statistics

showed more deaths than expected. The public inquiry is addressing why the serious

problems at the Trust were not identified and acted on sooner and is examining the

commissioning, supervisory and regulatory organisations in relation to their

monitoring role.

12. As PCaW's biennial review commented `the picture now emerging is of a hospital

with a dangerously closed culture in which dissent was quashed, demonstrate why

6 For a full review of the justification and rationale of the doctrine of vicarious liability, see JGE v The English Province of Our Lady of Charity & The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2011] EWHC 2871 (QB), 8.11.11, MacDuff J 7 Independent Inquiry into care provided by Mid Staffordshire NHS Foundation Trust, January 2005 —March 2009 (an inquiry under the NHS Act 2006) report available on www.midstaffsinquiry.com/documents The current inquiry under the Inquiries Act 2005 was announced on 9.6.10 and is now at the stage of closing submissions — for more information go to www.midstaffsnublicinguiry.com


whistleblowing is so important. If questions had been asked before serious problems

developed and early warnings heeded, lives could have been saved, damage

prevented and huge costs averted.'

13. Also apparent from PCaW's evidence to the Inquiry is that the Trust's 2008

whistleblowing policy had a number of specific weaknesses that were likely to inhibit

speaking out.

14. About 15% of calls about a public concern to PCaW's advice line have come

from workers in the care sectors (with another 13% from the health sector). 55% of

the care sector concerns were about abuse in care and 12% were about public,

including patient, safety. 40% of all care sector concerns reported to PCaW were

initially ignored or denied by the organisation. 9 In contrast, although in 2009 some

9% of calls were from the financial services sector, that had dropped to @ 5% in

2010.0

15. An open culture in which whistleblowing or speaking out is welcomed and dealt

with publicly may well be the answer to forestalling potentially vexatious claims and

of preventing a finding of protected disclosure discrimination. Part of such a culture is

having whistleblowing or `speak out' procedures. That would also assist in showing

that an organisation has proportionate procedures to guard against the risk of

bribery.

16. On reading the EAT's judgment in Korashi v Abertawe Bro Morgannwg

University Health Board 11 it may be relevant to the later litigation history that

despite investigating his disclosures about two clinical deaths, the hospital had not

sent him a copy of the first report; nor after he made further disclosures was the

second report shared with him. 12 To the extent that confidentiality issues may

prevent feedback, the BSI Code of Practice links the problem that the "absence of

feedback on a concern makes it more likely that a wider, public disclosure will be

8 Whistleblowing: beyond the law, PCaW, October 2011

9 Speaking up for vulnerable adults: what the whistleblowers say PCaW April 2011 10 Whistleblowing: beyond the law, PCaW, October 2011

ii EAT/424/09, 12.9.11, HHJ McMullen QC

iz Ibid @ [43]


protected" with the importance that an organisation "makes clear to all those involved

that the employee was right to raise the concern "13

Numbers

17. Identifying the number and type of PIDA claims is not easy. The Tribunal

Service's Annual Statistics do not identify them separately. However, PCaW figures,

based on BIS data, put the number of PIDA claims at 1,761 in 2008-2009 and at

2,000 in 2009-2010.

18. Of the 1,600 PIDA claims disposed of in 2009-2010, only 275 got to a full

hearing, with 31% of those being successful 14. As with all jurisdictions, the bulk of

claims, some 74%, are disposed of through an ACAS conciliated or other settlement

or are withdrawn. That fallout figure rose to 79% in 2010-2011, comparable to the

77% for sex discrimination and 75% for age discrimination claims, but rather more

than the 66% for unfair dismissal claims.

19. For 2010-2011, PCaW identify an overall drop of 600 in the number of claims

disposed of, a fall of @ 40%, with 45% of claims disposed of at a tribunal full

hearing. Of those, the success rate for claimants fell to 24.4% (based on just 30

people). That compares to a 47% success rate for unfair dismissal complainants or

33% for sex discrimination complainants at full hearings. 15

20. Set against the actual figures, it is likely that reports of problems of spurious

whistleblowing claims depend on anecdote rather than analysis. It may be that the

feared effect of the extension of the unfair dismissal period to 2 years is unjustified.

Perhaps more likely is an increase due to the fall out from public expenditure and

related cuts.

13 PAS 1998-2008, @4.6 14 Including prehearing reviews reduces the success rate to 20%; figures not included here as without details of the number of successful PHRs, like is not being compared with like. 15 PCaW figures at http://pcaw.co.uk/law/pidalatestfigures.htm . Annual Tribunal statistics at http://www.justice. ov.uk'publications/statistics-and-data/tribunals/annual-stats.htm , see Table 2.1 and Table 2.2.


Who is protected?

Overview

21. For a person to be protected they must have made what is defined as a

protected disclosure under s43A.

22. To count a `protected disclosure' within the meaning of s43A, a person must in all

cases have made a `qualifying disclosure' (as defined in s43B).

23. The next hurdle is that that disclosure must have been made in accordance with

the provisions of any of ss43C to 43H. A tiered approach to what is required puts the

fewest hurdles facing a discloser where disclosure is made to the employer. Loosely,

the more remote a disclosure is from the employer, the greater the hurdles.

24. Finally, at the time they made the disclosure and at the time of suffering

detriment, they must count as a `worker'. Where the detriment is dismissal, an

employee has to turn to the unfair or automatically unfair dismissal regime. Workers

however, stay within the higher standard of protection afforded by s.47B ERA' s

25. Making a `protected' disclosure is only one side of the coin. The other side is

whether its connection to an act (or to a deliberate failure to act), which is accepted

as being a `detriment', is such as to fall within the scope of s.47B. Loosely, did the

employer subject the worker to that detriment in order to get back at him for making

that disclosure?

Worker status

26. Section 43K gives `worker' a meaning that goes beyond the standard definition in

s230(3) ERA.

27. Section 230(3) are PIDA-protected in any event. Section 230(3) covers

employees and self-employed workers who are contracted to perform personally any

work or services for another in a contractual relationship which, loosely, is closer to

16 See NHS Manchester v Fecitt @ [44] [45]


an employment sector relationship than that between two independent business

undertakings".

28. Section 43K is an extra provision, including those who do not satisfy the s.230(3)

definition. It extends the protection to those in tripartite-type relationships where

there is no contract between the worker and the end user; to agency workers;

homeworkers; outworkers; NHS practitioners; and to trainees on vocational or work

experience schemes. It does not cover volunteers, nor non-executive directors.

29. It is helpful to focus on the substance rather than the form of the relationship. At

issue is whether the substance of the relationship is such that the facts fit within any

of the s43K provisions. Note also that there may be more than one èmployer' for

PIDA purposes. Section 43K(2) extends the normal meaning of èmployer' for the

purposes of Part IVA so that it includes the listed examples.

Agency and intermediary workers

30. Agency workers come under s43K(1)(a). The definition here goes wider than

most people might assume. For example, it includes people working for intermediary

companies whether or not they come within the IR35 tax regime or provide their

services, at rather more risk to themselves, through intermediary Managed Service

Companies. As an IR35 lookalike example, the claimant in Croke v Hydro

Aluminum Worcester [2007] ICR 1303, EAT, provided his contractual engineering

services via his own company, a tax-efficient vehicle that was his immediate

employer18 . That company agreed with a recruitment consultancy to provide

consulting engineering services to Hydro. On analysis, and using the approach of

where possible construing the provisions so as to provide rather than deny

protection, the facts fell within s43K(1)(a).

31. Under s43K(2)(a)., in agency worker cases the employer for PIDA purposes

includes "the person who substantially determines or determined the terms on which

he is or was engaged" Note that èngaged' is wider than `contracted' and should

17 See, eg, James v Redcats (Brands) Ltd [2007] IRLR 296, EAT, in the context of national minimum wage legislation. Note that more than one test may be relevant and always consider the full facts of the relationship.

18 The IR35 regime came into force on 6 April 2007


include the nature of the work actually required. It is likely that local authorities or

schools will count as the PIDA employer of any agency worker placed with them.

Homeworkers and outworkers

32. Section 43K(1)(b) is generally seen as covering a homeworker who is not

required to do the work personally but can substitute another (s230(3) covers those

who are genuinely restricted to doing the work themselves). As a key criterion is that

the work be "done in a place not under the control or management of [the

contractor]"that work, for the purposes of the contractor's business, may be done

anywhere. Peripatetic workers, such as couriers, are likely to be covered.

NHS workers

33. It is safe to start from the assumption that any independent professional

providing NHS services under a contract with a Primary Care Trust, a local Health

Board (in Wales) or Local Board (in Scotland) will be treated as a PIDA worker under

one of ss43K(1)(ba) to (ca). PCTs are due to be abolished from 31.3.13 — expect

amending regulations to substitute references to the replacement commissioning

body.

Work experience

34. Section 43K(1)(d) treats a person placed on a work experience or on a training

for employment course (or both) as a PIDA worker if, although that (non-employee)

work is provided as part of a training course or programme, it is not actually run by

their educational establishment. It should also cover unemployed people or those on

employment and support allowance receiving relevant training or placed on work

experience whilst continuing to receive benefits. The terms used are not further

defined, so coverage depends on whether the facts of the particular arrangement

satisfy s43K(1)(d). The person providing the work experience or training is treated as

the PIDA employer.

Police

35. Protection is extended to police officers by s43KA


Previous employment

36. A worker is protected if he counted as a worker both when making the disclosure

and when suffering detriment or dismissal. That work does not have to be for the

same èmployer' — see BP plc v Elstone [2010] IRLR 558, EAT, where the

disclosures had been made to the previous employer. However, unless the detriment

is inflicted by a former employer, the claimant must be a worker at that time. The

Court of Appeal in Woodward v Abbey National [2006] IRLR 677, extended s47B

to cover post-employment detriment (in that case failing to provide a reference to a

prospective employer) relying on the elucidation in Rhys-Harper v Relaxion Group

[2003] IRLR 484 HL of ìn employment' as meaning ìn the employment relationship.'

As Ward U also observed:

It simply makes no sense at all to protect the current employee but not the former employee, especially since the frequent response of the embittered exposed employer may well be dismissal and a determination to make life impossible for the nasty little sneak for as long thereafter as he can. If it is in the public interest to blow the whistle, and the Act shows that it is, then he who blows the whistle should be protected when he becomes victimised for doing so, whenever the retribution is exacted. @ [68]

37. In terms of possible time frames, the near 7 year gap between disclosure and

detriment in Miklaszewicz v Stolt Offshore Ltd [2002] IRLR 344 shows the

relevance of Ward U's observation. The claimant had reported his employer to the

Inland Revenue, well before the passing of PIDA and at a time that the Revenue had

not been prescribed for the purposes of the then non-existent s43F ERA. After a

series of employments and transfers of undertakings he found himself again

employed by an incarnation of the original employer. The Court of Session held that

it was the law in force at the time of the dismissal that was applicable. 19

38. Pre-employment protected disclosure victimisation is not covered — see BP plc v

Elstone @ [37] However, some factual scenarios could well be covered. For

example, if the detriment rests on the previous employer's reference (a Woodward

type case) then the detriment would be the nature of the reference with the claim

against the former employer and the compensation including the lost prospective

19 See [ 19] and note Miklaszewicz was an interim relief case, so only dismissal was before the Court of Session. A similar argument may be made for detriment.


earnings20 . Another example would be if the facts come within scope of 'the

employment relationship', eg a Miklaszewicz variant where the former employer to

whom the disclosure was made is now, whether under the same or a different guise,

the prospective employer — arguably enabling a pre-employment claim.

A qualifying disclosure?

39. To be a `qualifying disclosure' falling within s.43B ERA, the worker must have a

`reasonable belief'that the `information' disclosed `tends to show'a listed failure that

has happened, is happening, or is likely to happen.

40. The relevant failures are those listed in s.43B(1)(a) to (f). The `reasonable belief'

must be that the information disclosed tends to show one or more of:-

(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, or is likely to be deliberately concealed.

General considerations

41. As Underhill J observed in Easewaran v St George's University of London

EAT/167/10, 24.6.10, @ [19]:

It is always desirable, and particularly so in the case of complex provisions of this kind, for employment tribunals carefully to analyse the separate elements in the statutory provision under consideration and then to consider in turn whether each has been met.

42. Although the point is made in the context of s43B the remainder of the PID

provisions share the same need for a careful step by step approach, translating each

20 See, eg, in a sex victimisation context Bullimore v Pothecary Witham Weld (No 2) [2011] IRLR 18 @ [26] where both the previous and the prospective employer victimised the claimant because of her previous complaint of sex discrimination. Underhill J refers only to loss of earnings, rather than the loss of chance of getting the lost job. However, that may well be due to the two Respondents agreement to apportion the loss between them.


statutory step into a question to be addressed in evidence and answered by the

tribunal.

43. By s43B(2) it makes no difference what law might be applicable, nor the

geographical location of the failure.

44. The way s43B(1)(a) to (f) is drafted does not limit the scope of a relevant failure

to the wrongdoing or any failure of the whistleblower's own employer — see Hibbens

v Hesters Way Neighbourhood Project [2009] IRLR 198, @ [14] and the EAT's

discussion @ [15]-[21] 21

45. If a reward is payable "by or under any enactment'; s43L(2) disregards that when

considering whether or not a disclosure has been made for `personal gain' (relevant

for third tier disclosures under s43G and s43H). For example, a reward by HMRC

would be disregarded. There is no territorial restriction, so the possibility of a Dodd-

Frank bounty of up to 30% of the penalties imposed by the US Securities and

Exchange Commission would also be disregarded. That could result where the

disclosure is to the SEC22 giving original information that a UK based subsidiary of a

US public company is violating US securities laws. The conditions for eligibility are

strict23

46. If the worker commits an offence by making the disclosure, that cannot count as

a qualifying disclosure — s43B(3).

21 A language teacher, having identified that a student had been named as a suspect in a rape case, whereabouts unknown, telephoned the police to give basic details. 22 Although a regulatory body, the SEC is not prescribed under the PID (Prescribed Persons) Order 1999. UK so unless disclosure to the SEC is part of the employer's whistleblowing procedure thus bringing protection under s43C(2), protection has to be under the more onerous conditions of s43G or s43H 23 For which, follow through the link at http:/!ww.gpo.gov/fdsys/pkgfPLAW-1 l 1publ203/content-detail.html , to s748 of the Dodd-Frank Wall Street Reform & Consumer Protection Act [Public Lawl11-203] which amends the Commodity Exchange Act.


Is it a `disclosure' of ìnformation'?

47. If the recipient is already aware of the information being disclosed, s43L(3) treats

the `disclosure' "as a reference to bringing the information to his attention': 24

48. What if it is a worker's job to report on matters that could be the subject of

`protected disclosures'? This has a different focus to the question of whether

information that is already known can be a `disclosure' — specifically protected by

s43L(3). Rather it looks at what is required for something to be a `disclosure' in the

first place. Do the dictionary definitions of à bringing to light, or revealing' have any

significance? There is no direct authority on this point. However, in Bolton School v

Evans [2007] IRLR 140, CA, Buxton U, in the context of considering whether a

course of conduct could be a disclosure, observed @ [14]:

The legislation uses a common word, 'disclosure', and sets out in some detail the circumstances in which that disclosure will or will not be protected. There is no reason to think that Parliament intended to add to that machinery by introducing some special meaning of the word disclosure. Indeed the ET itself, in some detail in the passage that we just looked at pointed to the controlling structures imposed by the act. The question of whether the conduct for which the employee was disciplined was indeed 'disclosure' accordingly remains a question for the normal meaning of that word. Nor did the ET think otherwise. It did not reach its conclusion by construing the word disclosure, but rather introduced a straightforward policy determination that the Act should extend not only to the disclosure itself but also to the conduct of the employee

49. More recently, Blitz v Vectone Group Holdings Ltd suggests that rather than

over-analyse the meaning of `disclosure', it may be simpler to rely on the point that in

this situation "it would be surprising if he were to have been dismissed for making

such disclosures; it was his job... "25

50. Only information is protected: facts, not allegations nor statements of position. In

Cavendish Munro Professional Risks Management v Geduld [2010] IRLR 38,

EAT, Slade J, having noted at [23] that "giving ìnformation' and making àn

allegation' are treated differently in [the Sex Discrimination Act for the purposes of

victimisation] as well as in the ERA", held @ [24] that:

24 Some practitioners refer to Everett Financial Management Ltd v Murrell EAT/552/02, 23.2.03, HHJ Burke QC, as authority for doubting whether s.43L ERA means what it says. A better view might be that it serves to show that anyone can overlook hard letter law — see [44(ii)] and [45(ii)]. 25 Blitz v Vectone Group Holdings Ltd EAT/253/10, 29.11.11, HHJ Serota QC, @ [21]


the ordinary meaning of giving 'information' is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating 'information' would be 'The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around'. Contrasted with that would be a statement that 'you are not complying with Health and Safety requirements'. In our view this would be an allegation not information.

51. The approach in Geduld, putting form over substance, seems out of step with

the purpose of PIDA and its required generous approach to construction. The

immediate factual context was a solicitor's letter summarising his position:-

'We have been instructed by Michael Geduld in respect of the recent discussions that have taken place between the parties. We have given full advice to our client regarding his rights as a shareholder, director and employee. Such advice includes the purported agreement between the parties signed immediately before the Christmas break but "back dated". There are a number of issues regarding the validity of such an agreement and the unfair prejudice to our client, taking into account the events leading up to and immediately after the signature of the agreement. Our client's position is fully reserved regarding his rights and claims in this regard and we have advised him that such arguments are significant and are very likely to be successful in court.'

'Our client is putting forward this proposal as a means to bring a swift conclusion to the current position. If it is not accepted in its entirety then our client will take all steps that are necessary to protect his position including issues regarding the purported shareholders' agreement; the actions of the company's accountant regarding the purported valuation and the various threats and circumstances surrounding the position our client finds himself in with the remaining two shareholders which has led to unfair prejudice upon our client as a shareholder by the company. Such unfair prejudice does raise the issue as to the future of the company.' @ [6]

52. The EAT held that this "did not disclose any facts; it merely summarised the

basis of a position adopted by Mr Geduld."[28] This seems rather stronger than the

standard pre-constructive dismissal letter the EAT consider at [29] Perhaps

unsurprisingly, the employer's response was to dismiss him. Oddly, given the effect

of the letter and as it evidenced the factual instructions given to the solicitor in the

course of his obtaining that advice, no claim had been made under s43D.

53. In similar vein, Slade J takes the same robust approach in Smith v London

Metropolitan University (2011) IRLR 884, EAT. The Claimant had a degree, MA

and PhD relating to drama, but no qualification in English literature apart from having

gained a C grade at A level back in 1979. Following a dispute, she was moved from


the drama to the English department. Her precise role was not set out, although she

had stated that she would be unable to teach straight English modules. When she

was required to teach English modules she responded that `she could not teach

English modules because she was neither qualified, skilled, nor experienced to do

so. She also stated that she was not contracted to do so either.' and asked if it was

seriously suggested that a 1979 C grade qualified her to teach literature at degree

level. 26 Shortly afterwards she raised a grievance in similar terms. In a second

grievance, over a year later, she said 'I am feeling harassed and stressed by your

constant criticism, your attempts to undermine m y professionalism, and by the time

it is taking to deal with each of the problems you create; and I would ask you now to

allow me to get on with my job without further harassment. X27

54. As the ET had found that the Claimant was dismissed because the University

believed she had broken her contract in refusing to perform the duties requested of

her, the rest is obiter. The EAT say simply that `for reasons explained in Cavendish

Munro' the grievances were not a `disclosure of information'. 28

55. It is suggested that Respondents should not place too strong a reliance on

Cavendish Munro v Geduld. Other divisions of the EAT have taken a different

approach to `information'.

56. In Freeman v Ultra Green Group EAT/239/11, 9.8.11, HHJ Richardson, the

Claimant's concern was that he was being asked to prepare financial plans which

were grossly inflated. He told a company meeting that he had based the financial

model on 100,000 hectares, his Chief Executive had directed him to base it on 2

million hectares, he had refused to do so, stating that there was no proper basis for

that model, that to use it would provide investors with false information and would be

misleading. The ET seemed to have thought this was a mere allegation. The EAT

describe that view as "untenable': 29

26 See@[10]

27 See @ [20]

28 See @ [88]

29 See @ [12]


57. In Royal Cornwall Hospitals NHS Trust v Watkinson EAT/378/10, 17.8.11,

Silber J, the EAT rejected a submission that it was only an allegation and not the

disclosure of information to tell a meeting that counsel had advised that the

Respondent and the PCT were under a duty to consult on a proposed move of

certain services from Truro to Plymouth. 30 The Claimant was disclosing information

about what the Respondent and PCT had to do to comply with their duty.

58. Returning to the Geduld hypothetical example, a gesture towards a heap of

sharps in the corner of a ward, plus the statement `you are not complying with health

and safety requirements' seems to convey information. Adding `the way this ward is

run' before an allegation of non-compliance certainly conveys information about why

there is a relevant failure — it refers to the factual situation in that ward and its

management.

59. It may not give specific information but an unwelcome allegation of wrongdoing is

perhaps more likely to raise hackles in a potential victimiser than making a statement

of the obvious. If one distinguishes too formalistically between fact and allegation,

the next battleground may be over whether a worker was disciplined for disclosing a

fact or for the allegation. In terms of the object of PIDA, it is important not to lose

sight of the fact that the Act is aimed at protecting those who in good faith try to

expose wrongdoing. As Auld LJ put it in Street v Derbyshire Unemployed

Workers' Centre:

"The scheme of the 'whistleblowing provisions ..... is to encourage and protect employees to, and who, report concerns about malpractice in the work-place and elsewhere." @ [5] 31 [emphasis added]

60. If all that is said to a ward sister is, say, `Mrs Jones did not eat anything

yesterday' would that be recognised as a disclosure at all? How much of the

background facts must be spelled out, or understood, for the information to become

at all sensitive? There is no requirement that the particular failure relied upon be

spelled out in the disclosure but if someone is going to be aggravated to retaliate, a

disclosure must surely be recognisable as such.

30 See @ [32] and [75]

31 [2004] IRLR 687, CA


61. There is no requirement that the disclosure spells out in terms the precise failure

the worker thinks it shows — see Bolton School v Evans EAT/648/05, 7.2.06, Elias

J, @ [41 ]32

62. Perhaps a good way of addressing this is to view matters as on a scale. At the

lowest end is the hypothetical Geduld-type information, so innocuous that an

employer might not realise a disclosure was being made — raising the inevitable

question of how such a disclosure could ever be a reason for inflicting detriment. As

one moves along the scale, the failure at issue would become increasingly obvious.

63. It is important to contextualise. Something written may help evidence an earlier

oral disclosure of information. For example, the petition in Everett Financial

Management Ltd v Murrell 33 in the circumstances of that case had to be

considered in isolation. The petition was not capable on its own of being a qualifying

disclosure. It referred to concerns raised at a meeting the previous day, but did not

specify the factual basis of those concerns. The pleadings relied only on the petition

as the disclosure, there was no documentary or witness evidence about what had

been said at the meeting and, perhaps unsurprisingly, the ET had made no findings

about what had happened the previous day.

64. Although contextualising does not extend to including the whole of a course of

conduct as part of a `disclosure' — see Bolton School v Evans [2007] IRLR 140,

CA, @ [12]-[17]34 Buxton U's observation at [14] (cited above) shows that the

factual borderline is likely to be hazy.

65. That contextualising may not always demonstrate all that is required to be a

qualifying disclosure does not deny its importance. The expression of `disgust' at a

document setting out consultative proposals for changing a discretionary enhanced

redundancy payment scheme in Goode v Marks & Spencer EAT1442109, 15.4.10,

Wilkie J, was "information' in the sense of being a statement of his state of mind"—

32 Not overturned on appeal on that point. 33 EAT/552/02, 24.2.03, @ [45]-[48] 3a Technology teacher concerned about the security of new computer system, having told the staff member responsible for security beforehand what he was going to do and reporting it afterwards, hacked into the system, disabling some of the user accounts. He resigned after a written warning for hacking into the system was upheld on appeal. The ET made a purposive construction, taking the whole course of conduct as the disclosure.


see [36]. The real problem was that even if the consultative document had been

embedded within that disclosure, `there is nothing in that document which anyone

could reasonably believe tended to show that it was likely that the Respondent would

fail to comply with any legal obligation in respect of the enhanced redundancy

payment scheme." [37] As such, be wary of reading too much into the summary

given at the start of the judgment. Goode also demonstrates the importance of

looking at the statutory requirements as a whole.

66. In Korashi, the EAT observed that what is reasonable in s43B involves an

objective standard and its application to the personal circumstances of the discloser.

That requires considering what a worker in the claimant's shoes "knows or ought to

know about the circumstances of the matters disclosed. s 35

67. As part of contextualising it is suggested that it is helpful to consider the matter

from both viewpoints, that of whistleblower and recipient, and to take account of any

shared background knowledge of what would commonly have been understood in

that particular employment. Do not underestimate the possibility of implied

statements about a situation.

A `reasonable belief'?

68. At issue under s43B(1) is first, whether the worker actually believes that the

information he is disclosing meets one of these criteria. This is a subjective test. 36 A

belief may be held genuinely but be wrong. There is nothing in s43B which requires a

belief to be right. 37 Kraus v Penna [2004] IRLR 260 EAT, @ [29] misconstrued

s43B(1) in this respect and should not be followed - see Babula v Waltham Forest

College @ [73] and [79]:

It is also, I think, significant that s.43B(1) uses the phrase 'tends to show' not 'shows'. There is, in short, nothing in s.43B(1) which requires the whistleblower to be right. At its highest in relation to s.43B(1)(a) he must have a reasonable belief that the information in his possession 'tends to show' that a criminal offence has been committed: at its lowest he must have a reasonable belief that the information in his possession tends to show that a criminal offence is likely to be

35 Korashi EAT/424/09 @ [62] 36 Babula v Waltham Forest College [2007] IRLR 346, CA, @ [82]

37 Babula @ [79]


committed. The fact that he may be wrong is not relevant, provided his belief is reasonable, and the disclosure to his employer made in good faith (s.43C(1)(a)).

69. The existence of a belief and that it `tends to show' are both fairly low

thresholds. 38 The first level of control comes in the objective requirement that the

belief be `reasonable'.

70. The factual accuracy of the disclosed information will almost always be relevant

as a tool when deciding whether or not the belief is a `reasonable' one. In essence, if

a worker is wrong, the mistake must be a reasonable one 39 and be based on the

facts as understood by the worker. 40 As HHJ Serota QC put it in Darnton:

"... the determination of the factual accuracy of the disclosure by the tribunal will, in many cases, be an important tool in determining whether the worker held the reasonable belief that the disclosure tended to show a relevant failure. Thus if an employment tribunal finds that an employee's factual allegation of something he claims to have seen himself is false, that will be highly relevant to the question of the worker's reasonable belief. It is extremely difficult to see how a worker can reasonably believe that an allegation tends to show that there has been a relevant failure if he knew or believed that the factual basis was false, unless there may somehow have been an honest mistake on his part. The relevance and extent of the employment tribunal's enquiry into the factual accuracy of the disclosure will, therefore, necessarily depend on the circumstances of each case. ..." @ [29]

71. Goode also shows that the emphasis on `factual accuracy' found in Darnton

depends on a case-based viewpoint. Factual accuracy is just one tool for addressing

reasonable belief. The ways of demonstrating the existence of , or the lack of, a

reasonable belief are not closed but depend on the full context. There was nothing

inaccurate about the consultative document in Goode. The problem lay in what was

said to be believed about it. As Silber J observed in Royal Cornwall Hospitals NHS

Trust v Watkinson EAT/378110, 17.8.11:

The issue has to be considered not in isolation, but in the context of the entire evidence, including the previous history, so as to ascertain the factual matrix against which the disclosure had been made. @ [72]

72. Another issue would be when anger, emphasis or hyperbole hits the point at

which objectively it is so far adrift from the relevant failure that it negatives

38 See Korashi @ [61 ]

39 See Darnton v University of Surrey [20031 IRLR 133, EAT, HHJ Serota QC, @ [29-30]

40 Darnton @ [33] Korashi @ [62]


`reasonable belief'. 41 Irrationality, as in Roberts v Valley Rose Ltd EAT1394106,

31.5.07, McMullen QC, certainly passes that test. Sadly as the disclosure

concerned non-compliance with fire testing arrangements, the detail is not shared.

'Likely to'

73. Although the meaning of `likely to' in s43B(1) was also at issue in Kraus v Penna

plc [2004] IRLR 260, the CA in Babula did not consider that point. In Kraus, on a

limited review of the authorities, the EAT held that in s43B(1)(b) `likely to' means

`more likely than not'. The HL judgment in Cream Holdings Ltd v Banerjee [2004]

UKHL 44, [2005] 1 AC 253, was not put before the EAT. In Banerjee Lord Nicholls

of Birkenhead observed:

'As with most ordinary English words "likely" has several different shades of meaning. Its meaning depends upon the context in which it is being used. Even when read in context its meaning is not always precise. It is capable of encompassing different degrees of likelihood, varying from "more likely than not" to "may well ".' @ [12]

74. It is suggested that the degree of likelihood of the relevant failure occurring

should be related to the seriousness of the consequences if nothing was done at that

stage. See the discussion, in the context of disability and the effect of treatment, in

SCA Packaging Ltd v Boyle [2009] IRLR 746, HL @ [67]-[70] and in the context of

the s129(1) ERA test for interim relief, in Raja v Secretary of State for Justice

EAT/364/09, 15.2.10, HHJ Birtles, @ [18]-[28]

Methods of disclosure - overview

75. In Street v Derbyshire Unemployed Workers' Centre [2004] IRLR 687 the

Court of Appeal succinctly set out the three-tiered disclosure regime. Under this

regime a whistleblower's responsibility:

for justifying his disclosure is set progressively higher according to the distance of the person to whom he makes it from the main subject or object of his complaint. In all of them, save for s.43D - disclosure to legal adviser - the minimum requirement for protection is that the disclosure is made 'in good faith'. @ [5] per Auld LJ

ai As was the case in Easewaran v St George's University of London EAT/167/10, 24.6.10, Underhill J, @ [23] See also Meares v Medway PCT EAT/65/10, and Rimer U's detailed review when refusing her permission to appeal [2011] EWCA Civ 897, 28.7.11 where the level of vitriol showed she was motivated by an animosity that negatived good faith.


76. The first tier has two divisions. The simplest is making a disclosure in the course

of getting legal advice — s43D. The remainder of the first tier requires one extra

factor: good faith. Section 43C covers disclosures to employers or other responsible

people, including where a disclosure is made in accordance with an authorised

procedure. Where the immediate employer is appointed under any enactment by a

Minister of the Crown, s43E covers disclosure to that Minister or to a member of the

Scottish Executive.

77. The second tier is to a prescribed body, a regulator, s43F. As well as `good faith',

the discloser needs a reasonable belief that the regulator is responsible for the

matter and that the information disclosed and any allegation contained in it are

substantially true.

78. The third tier, s43G and s43H cover wider disclosures, carrying the toughest

thresholds for protection.

First —tier disclosure — legal advice

79. . The simplest level of disclosure is under s43D to a legal adviser:

A qualifying disclosure is made in accordance with this section if it is made in the course of obtaining legal advice.

80. If the disclosure gets through the s43G gateway, nothing else is required. It is a

`protected disclosure' under s43A. If a discloser is dismissed or suffers detriment

because of having obtained legal advice they can claim under sl03A or s47B with

s48(1A) as appropriate.

81. There is no requirement that the disclosure is made to a lawyer.

82. How much or what an employer must know will be at issue when considering

whether an act was done 'on the ground that the worker has made a protected

disclosure'


Good faith

83. The leading authority on `good faith' remains Street v Derbyshire Unemployed

Workers' Centre [2004] IRLR 687, CA. Although both Auld LJ and Wall LJ say they

stepped back from leaving the concept of good faith

as a form of judicial elephant: difficult to define, but readily identifiable through the good sense and fact -finding capabilities of employment tribunals. Per Wall LJ @ [69]42

their detailed consideration of all relevant factors, flexible guidelines and the resulting

search for the sometimes elusive `predominant` purpose of a disclosure, can be seen

as amounting to much the same. It is perhaps simpler to identify the lack of good

faith

84. `Good faith ' imports more than honesty. It raises a question of motivation:

as a matter of general human experience, a person may well honestly believe something to be true, but, as in the instant case, be motivated by personal antagonism when disclosing it to somebody else per Wall LJ @ 68]

85. Mixed motives raise particular difficulty. As Wall LJ commented, a discloser "is

hardly likely to have warm feelings for the person about whom (or the activity about

which) disclosure is made." @ [72] If the primary purpose for making the disclosure

is to help "remedy the wrong which is occurring or has occurred; or ...[to bring it] to

the attention of third party in an attempt to ensue that steps are taken to remedy the

wrong" that worker is protected.43

86. If however,

his or her predominant motivation for disclosing information was not directed to remedying the wrongs identified in s.43B, but was an ulterior motive unrelated to the statutory objectives.

the discloser would not be acting in good faith. as

87. An ET must consider all the evidence and decide for itself whether the dominant

or predominant motive is an ulterior one. "As in all cases where improper motivation

42 And per Auld LJ @ [54] 43 Street @ [71 ]

44 Street @ [73]


is alleged, it should be made explicit in advance, and it should be put squarely to the

Claimant45

88. In Street, her personal antagonism towards the Centre's Co-ordinator was her

predominant motivation for making the disclosure. In Aryeetey v Tuntum Housing

Association EAT1324109, 8.4.09, Silber J it was the claimant `s personal vendetta

against the Chief Executive. In Meares v Medway PCT, it was the level of vitriol. In

Roberts v Valley Rose Ltd, the vindictive campaign against a colleague went

further and included fabricating evidence against her by forcing a resident to write a

complaint about her,

89. In contrast, Bachnak v Emerging Markets Partnership (Europe) Ltd,

EAT/288105, 27.1.06, HHJ Peter Clark, appears mundane. The predominant motive

was the Claimant's own personal interest. The ET had found that two disclosures

were made to strengthen his hand in negotiating a new contract. Two other

disclosures were made once the disciplinary procedure was underway, to put

pressure on the employer not to dismiss. Personal advantage and covering ones

back can both show lack of good faith.

90. Phipps v Bradford Hospitals NHS Trust EAT/531/02, 30.4.03, HHJ Peter

Clark, is in similar vein, but rather more complex. Overall, the tribunal found lack of

good faith because the consultant was establishing a position and making clear to

the Trust that his position was not to be lightly challenged.` The essence of the

factual context supporting that finding can be seen as a failure to do what one might

expect of a consultant if there was a real concern for patients who had not received

adjuvant radiotherapy.

91. In Bright v Harrow & Hillingdon Healthcare NHS Trust EAT/115/01, the

ulterior motive was the consultant psychiatrist's objection to the appointment of a nun

in the first place, because of her view of the nun's competence. 47 At [30] the EAT

comment it was obvious from the facts found that the psychiatrist's reason for going

to the press was for her own protection.

45 Lucas v Chichester Diocesan Housing Association EAT/713/04, 7.2.05, HHJ McMullen QC @ [39]

4G Phipps @ [7] [8]

47 Bright EA T/115/01, 26.7.01, Douglas Brown J @ [24]


92. In Korashi, the ET did not obviously follow the predominant motive analysis.

Instead, they focused on his disingenuousness and cavalier criticism. In complaining

to the GMC, he had included prejudicial matters not raised with the Health Board,

while at the same time asking the GMC to disregard those matters. He had not

made very obvious follow-up enquiries before escalating matters. In criticising how

Mr A dealt with cancer patients, he referred to 6 cases, only 2 of which were cancer

patients. As HHJ McMullen commented, the tribunal "plainly found that [the

disingenuousness] exhibited an ulterior motive "48

93. Generally, Korashi shows that the more extreme is a discloser's behaviour, or

the greater the mismatch between the situation and the response one might expect,

the more likely is a finding of lack of good faith. Read with Phipps, `good faith'

begins to look like acting sensibly and proportionately; of doing what might

reasonably be expected of someone in the worker's shoes.

`Internal' first tier disclosures

94. Section 43C covers disclosures to the employer or other responsible person.

95. It is important to note that s.43C includes three different possibilities. Note that

under ss (2) the authorised procedure need not be a whistleblowing one.

(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith-

(a) to his employer, or

(b) where the worker reasonably believes that the relevant failure relates solely or mainly to —

(i) the conduct of a person other than his employer, or

(ii) any other matter for which a person other than his employer has legal responsibility, 49

to that other person......"

(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person

48 Korashi @ [72] 49 See, eg, Ross v Eddie Stobart EAT/85/10,16.5.11, HHJRichardson @ [38]


other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.

96. First —tier disclosure may also be made to a Minister of the Crown or Scottish

executive under s43E:

A qualifying disclosure is made in accordance with this section if—

(a) the worker's employer is-

(i) an individual appointed under any enactment [(including any enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament)] by a Minister of the Crown [or a member of the Scottish Executive], or

(ii) a body any of whose members are so appointed, and

(b) the disclosure is made in good faith to a Minister of the Crown [or a member of the Scottish Executive.

Second tier disclosures to Regulators

97. Second tier disclosures under s43F include an extra hurdle.

43F Disclosure to prescribed person

(1) A qualifying disclosure is made in accordance with this section if the worker—

(a) makes the disclosure in good faith to a person prescribed by an order made by the Secretary of State for the purposes of this section, and

(b) reasonably believes-

(i) that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and

(ii) that the information disclosed, and any allegation contained in it, are substantially true.

(2) An order prescribing persons for the purposes of this section may specify persons or descriptions of persons, and shall specify the descriptions of matters in respect of which each person, or persons of each descriptions, is or are prescribed.

98. The conditions for a Regulatory disclosure can be summarised as:

98.16. good faith


98.17. reasonable belief that the matter complained of comes within the

description of the powers of the regulatory body; and

98.18. reasonable belief that both the information and any allegation are

substantially true.

99. There is no obligation on a discloser to make any allegation at all. But if he does

make allegations, each such allegation must be `substantially true' – Korashi @ [66]

100. The regulatory bodies and the description of the matters for which they are

prescribed are exhaustively listed in the PID (Prescribed Persons) Order 1999 /1549.

The list is up-dated and expanded from time to time. The Schedule is also self-

updating as the last entry covers successor bodies. For example, HMRC is not listed

but as it combines the functions of the disclosure to HMRC may be covered if it

would formerly have been made to the Commissioners of Customs and Excise or to

the Commissioners of the Inland Revenue.

101. A simple way of checking whether in fact the matter comes within the prescribed

By r2(3) of the Rules of Procedure, which came into force for claims presented on or

after 6.4.10, the ET Secretary has discretion to refer a copy of an accepted PD claim

(or part of it) to a regulator if the claimant consents. The Annex to Sch 1 of the Rules

of Procedure gives a list of Regulators. This is in similar terms to the list of persons

prescribed for the purposes of s43F ERA

Third tier disclosures to the wider public

102. If a disclosure is not made in accordance with any of s 43C to 43F, the discloser

has to turn to the more difficult hurdles presented by s43G or, if the matter is

exceptionally serious, to s43F:-

43G. Disclosure in other cases

(1) A qualifying disclosure is made in accordance with this section if—

(a) the worker makes the disclosure in good faith,

(b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c) he does not make the disclosure for purposes of personal gain,

(d) any of the conditions in subsection (2) is met, and


(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2) The conditions referred to in subsection (1)(d) are—

(a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F,

(b) that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or

(c) that the worker has previously made a disclosure of substantially the same information-

(i) to his employer, or

(ii) in accordance with section 43F.

(3) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to—

(a) the identity of the person to whom the disclosure is made,

(b) the seriousness of the relevant failure,

(c) whether the relevant failure is continuing or is likely to occur in the future,

(d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,

(e) in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and

(f) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.

(4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.

103. The conditions in s.43G(1) are cumulative, that is, that a disclosure is only a

'qualifying disclosure' if all of them are met.

104. Secondly, the conditions in s.43G(2) are disjunctive, that is, it is sufficient if any

one of them is met; although there is some overlap between them all.


105. Thirdly, in making separate and cumulative provision in s.43G(1) for 'good faith'

in (a), reasonable belief in the truth of the disclosure in (b), and reasonableness of

the disclosure in all the circumstance in (e), the draftsman has allowed for

circumstances in which the disclosure, though made with reasonable belief in its

truth, would not qualify for protection because it was not made in good faith and/or

reasonably. 5o

106. Section 43H is the last possibility. To be `exceptionally serious', the failure needs

to be something very different from an ordinary failure. An impending collapse of the

banking system or murder would obviously pass the test. In all cases look to the

purpose of PIDA, to the seriousness of what might happen if disclosure was not

made and generally to look at what has already happened. In all the circumstances

it has to be reasonable for the disclosure to be made to an external body.

43H Disclosure of exceptionally serious failure

(1) A qualifying disclosure is made in accordance with this section if—

(a) the worker makes the disclosure in good faith,

(b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c) he does not make the disclosure for purposes of personal gain,

(d) the relevant failure is of an exception ally serious nature, and

(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to the identity of the person to whom the disclosure is made.

Detriment and dismissal

107. Section 47B deals with detriment:-

(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

so See Street @[91[1 O]


(2) ... this section does not apply where—

(a) the worker is an employee, and

(b) the detriment in question amounts to dismissal (within the meaning of Part X).

(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, `worker', `worker's contract', `employment' and `employer' have the extended meaning given by section 43K.

108. For employees who are dismissed, sl03A provides for an automatically unfair

dismissal. There is no qualifying period of employment and no statutory cap on

compensation. Section 103A provides:-

An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

109. Since Fecitt in the Court of Appeal, the standard of proof for each is

different – see below. Note that in a constructive dismissal claim, the employee

can rely as detriment on the acts which resulted in the decision to resign – see

Melia v Magna Kansei ('2006] ICR 410. That does mean that someone who

resigns may well end up with greater compensation than someone who stays on

until dismissal.

110. Shamoon (2003] ICR 337, HL identifies detriment as `treatment of such a kind

that a reasonable worker would or might take the view t hat in all the circumstances it

was to his detriment' An unjustified sense of grievance is insufficient, but it is

unnecessary to show any physical or economic consequences.

111. Showing that there is been a protected disclosure is no more than getting the first

element in place. It must have been the reason for a later act or deliberate failure to

act that causes detriment. A claim can only be made once detriment has occurred.

Sometimes the act and the detriment will be one and the same, eg where the

victimisation take the form of disciplining an employee, imposing that sanction and

suffering it, are two sides of the same coin. 51

112. In that type of case, there is no difficulty with time limits. Further, in Tait v

Redcar & Cleveland BC EAT/96108, 2.4.08, Underhill J, the EAT held that a

51 LB Harrow v Knight @ [10] Vivian v Bournemouth BCEAT/254/10, 6.5.11, Slade .J@ [78]


disciplinary suspension was an act extending over a period, as disciplinary

proceedings would have been. 52

113. If the detriment occurs later then the act that is said to have caused it, as was the

case in LB Harrow v Knight, then arguably it would not have been `reasonably

practicable' to make the claim until the cause of action was complete.

114. It is crucial to identify the act or deliberate failure to act which is at issue which

led the employee to suffer detriment. 53 Only then is it possible to identify the reason.

In LB Harrow v Knight, the act / omission was failing to respond to his letters; the

detriment was the resulting psychological illness.

115. In Pinnington v Swansea City and County Council [2005] ICR 685, the

Claimant was sacked the day after PIDA came into force. The ET found that the

reason for dismissal was capability, not whistleblowing. That left a possible detriment

claim under s47B for any non-dismissal detriments. Her suspension had taken place

pre-PIDA; there was no evidence of any act of detriment during the two days PIDA

was in force; nor was there any evidence of a deliberate failure to lift her suspension

during that time. The question of whether a two-day suspension could constitute

detriment was left open. 54 Given the decision of another division of the Court of

Appeal in Gogay [2000] IRLR 703, it will be detriment in some circumstances.

The reason why?

116. Since Shamoon, given in the context of sex discrimination, there has been a

common approach to the tests required by the statutory phrases 'on racial grounds'

and 'by reason that'. That approach applies also to s.47B ERA 1996 when

considering whether subjecting an employee to detriment by an act or any deliberate

failure to act is done `on the ground that' she has made a protected disclosure.

117. This test is focused on the alleged discriminator's actual reason for action: his

motive, whether conscious or unconscious. In London Borough of Harrow and

52 See discussion at [7]-[9] 53 LB Harrow v Knight @ [5] 54 See [47]


Knight [2003] IRLR 140 EAT, Mr Recorder Underhill QC, as he then was, applied

the Khan / Nagarajan approach — see paragraphs 15 and 16:

"The authorities clearly establish that the question of the 'ground' on which an employer acted in victimisation cases requires an analysis of the mental processes (conscious or unconscious) which caused him to so act......

"... (The section outlawing victimisation which was in issue in Nagarajan ... used the phrase 'by reason that' rather than, as in s.47B, 'on the ground that'; but Lord Nicholls explicitly equated the test to that under s.1(1)(a) of the 1976 Act, which uses the very terminology of 'grounds' with which we are here concerned.)" [para 15]

"It is thus necessary in a claim under s47B to show that the fact that the protected disclosure had been made caused or influenced the employer to act (or not act) in the way complained of: merely to show that 'but for' the disclosure the act or omission would not have occurred is not enough (see Khan). In our view, the phrase 'related to' imports a different and much looser test than that required by the statute: it merely connotes some connection (not even necessarily causative) between the act done and the disclosure." [para 16]

118. That approach has recently been approved by the Court of Appeal in NHS

Manchester v Fecitt @ [22]

119. Bahl (EAT) still remains the best, most concise, summary of the correct

approach (paras 77 to 128). That approach is applicable to whistleblowing detriment

as a type of discrimination. In many cases, the `reason why' will be obvious.

However, some regard needs to be given to the 'criterion' approach.

120. This approach, of identifying the criterion of the impugned treatment reflects that

taken by the Supreme Court in the JFS case - [2010] IRLR 136 — see @ [13] and

[21]. The Supreme Court held that in the phrase "grounds for discrimination", the

word "grounds" is ambiguous. It can mean the motive for taking the decision or the

factual criteria applied by the discriminator in reaching his decision.

121. In deciding what were the grounds for discrimination it is necessary to address

the question of the factual criteria that determined the decision made by the

discriminator. Whether there has been discrimination, in JFS on the ground of race,

depends upon whether race was the criterion applied as the basis for the

discrimination. The motive or reason for discriminating according to that criterion is

not relevant.


122. On the JFS approach, it is only where the factual criteria which influenced the

discriminator to act as he did are not plain that it is necessary to explore the mental

processes of the discriminator in order to discover what facts led him to discriminate.

Such a "subjective test" is the exercise of determining the facts that operated on the

mind of the discriminator, not his motive for discriminating. It is only necessary to

consider the mental processes of the discriminator where the factual criteria

underpinning the discrimination are unclear.

123. Another way of considering the `criterion' approach is to consider whether the

reason "is inherent in the act itself"— see the discussion in Vivian v Bournemouth

BC @ [85] and Amnesty International [2009] ICR 1450 @ [33]

124. In addressing the reason why, an explanation of unreasonable or unfair

behaviour may provide an adequate non-discriminatory explanation simply because

it is the genuine reason.

125. Unreasonable behaviour, without more, is not enough to make out a prima facie

case of discrimination — see Bahl paras 93 to 101. The object of anti-discrimination

legislation is not to provide for fair treatment but for equal treatment.

126. Conversely, if the real reason is victimization, it is irrelevant that there were

justifiable grounds for inflicting detriment or dismissing. This is the ASLEF v Brady

point.

127. In all cases there has to be something more, some added factor, to make the

inference of discrimination - see Madarassy v Nomura International plc [2007]

IRLR 246. In race or sex discrimination claims, for example, factors pointing towards

discrimination can be quite obvious. It is far more difficult in whistleblowing cases. A

tribunal is looking at whether or not the facts, as a whole 55 , suggest that the `real

reason' for the treatment is having made a protected disclosure.

128. Tribunals are used to coincidence and insufficiently explained or justified

disciplinary procedures. Two examples suggest Respondents should be cautious in

ss El Megrisi v Azad University(IR) In Oxford EAT/448/08, 5.5.09, Underhill P, making the same point in the whistle blowing context as Qureshi in the discrimination context. The ET had wrongly focused on the most recent disclosure, ignoring the history of disclosures.


assuming that procedural mishaps or errors will not cast doubt on a non-victimising

explanation.

129. In Birmingham City Council & another v Samuels EAT/208/07, 24.10.07, a

race case, the EAT (HHJ McMullen) address whether the tribunal had properly

shifted the burden of proof on to the employer. The `added factors' here can be

summarised broadly as comprising unreasonable behaviour. It is trite law that,

without more, unreasonableness does not mean discrimination ( Zafar). There has to

be more to avoid falling into the Zafar error. There was apparently more in this case,

so claimants should not leap too readily on the EAT's observation that:

"what is important to note is whether or not the Respondent acted in accordance with its ordinary procedures. That will be capable of providing an inference for a Tribunal to draw at stage one. In this case it is contended, rightly we hold, that an inference can be drawn by BCC's treatment of the Claimant in relation to its own established procedures which had been operated inflexibly and hastily. „56

130. More recently, in Hewage v Grampian Health Board, ('2011] CSIH 4, the Court

of Session dealt with a race /sex discrimination case in what could have been run as

a whistleblowing claim. They deal with the 'something more' at [45]-[50] saying that

in this case it can be found in:-

- the irresolute response of senior management to the bully's behaviour;

- their failure to deal with her effectively;

- the delay in issuing the final report of an investigating panel;

- the inability of a decision- maker to explain why he had not had the panel

resolve the unresolved issues;

- the `craven decision' of the decision-maker in the face of the bully `s `hostile

reaction' to the report to make no recommendations for action

- the failure of the General Manager to reply to the claimant's request for a review

- the failure to take any disciplinary action, `however mild' against the bully;

- The failure to call any senior manager to explain the difference in treatment.

131. Where protected disclosures form the backdrop to management decisions,

capability or disciplinary proceedings, it may be difficult to isolate the reason why.

Martin v Devonshire Solicitors [2011] ICR 352, EAT, Underhill P, provides a

helpful approach. The claimant, a legal secretary, had a recurrent depressive illness

56 Birmingham City Council @ [31]


with psychotic episodes during which she had paranoid delusions and lodged

grievances. She genuinely believed them, but they were part of her symptoms and

she had no insight into the possibility that they could be part of her condition. She

was dismissed because of a `breakdown in trust and confidence'. Such claims have

to be scrutinized carefully. 57 Here, the:

reason for the Appellant's dismissal was not the unreasonable manner in which her complaints were presented (except perhaps to the extent that Mr. Hudson referred to the fact that some of the grievances were repeated). Rather, it identified as the reason a combination of inter-related features — the falseness of the allegations, the fact that the Appellant was unable to accept that they were false, the fact that both those features were the result of mental illness and the risk of further disruptive and unmanageable conduct as a result of that illness. But it seems to us that the underlying principle is the same: the reason asserted and found constitutes a series of features and/or consequences of the complaint which were properly and genuinely separable from the making of the complaint itself. Again, no doubt in some circumstances such a line of argument may be abused; but employment tribunals can be trusted to distinguish between features which should and should not be treated as properly separable from the making of the complaint. @ [22] [italic emphasis added]

132. In Hossack v Kettering BC EAT/1113101, 29.11.02, Wall J, the `reason why' a

political researcher was dismissed not because of making a disclosure but because it

evidenced her inability to distinguish between her actual job and the separate

political role of a councilor.

Burden and standard of proof - legal and evidential

133. When considering burden of proof, bear in mind Underhill J's comments in

Martin v Devonshire Solicitors (2011] ICR 352 @ [ 39]

... Those provisions are important in circumstances where there is room for doubt as to the facts necessary to establish discrimination — generally, that is, facts about the respondent's motivation (in the sense defined above) because of the notorious difficulty of knowing what goes on inside someone else's head — "the devil himself knoweth not the mind of man" (per Brian CJ, YB 17 Ed IV f.1, pl. 2). But they have no bearing where the tribunal is in a position to make positive findings on the evidence one way or the other, and still less where there is no real dispute about the respondent's motivation and what is in issue is its correct characterisation in law. In the present case, once the Tribunal had found that the reasons given by Mr. Hudson and Mr. Buckland in their letters reflected their genuine motivation, the issue was indeed how that was to be characterised and the burden of proof did not come into the equation.....

57 Martin @ [19]


134. Put rather more shortly by Mummery U in Kuzel:

"The danger is that in cases like [unfair dismissal] something so complicated will emerge that the sound exercise of common sense by tribunals will be inhibited." @ [46]

135. The burden of proof under sl 03A for dismissal should be addressed in light of

the principles in Maund v Penwith DC [1984] IRLR 24, CA, and the similar approach

in Kuzel v Roche [2008] IRLR 530, CA (see discussion at paras 49 to 61).

136. Given the terms of s.43A — 43H ERA, the legal burden of proving that s/he made

a protected disclosure, and so is subject to the protection of s47B, lies on the

Claimant.

137. There is an evidential burden on the Respondent to raise an issue about lack of

good faith, reasonable belief, or about `personal gain', but the legal burden remains

on the Claimant.

138. Similarly, there is an evidential burden on the Claimant to raise an issue, going

beyond a simple assertion, that the reason or ground for the treatment put forward by

the employer is not the real reason 58 .

139. In relation to a detriment claim, s48(2) ERA puts the burden on the employer to

show the ground on which any act or failure to act was done.

140. In dismissal cases (which are excluded from being considered as detriment), the

burden is on the employer to show the reason for dismissal. 59

141. The standard of proof is different. Since NHS Manchester v Fecitt & others

[2011] EWCA Civ 1190, 25.10.11, the standard of proof is different depending on

whether detriment or dismissal is at issue. eo

142. In detriment cases, the protected disclosure need only be a material factor in the

employer's decision to subject the claimant to that detriment, s' or materially

58 Kuzel @ [57] 59 Kuzel @ [56] 60 Technically obiter as the point did not arise for determination — see @ [43] 61 Fecitt @ [43]


influences (in the sense of being more than a trivial influence) the treatment. 62

Although Igen v Wong is not strictly applicable, Elias LJ commented that:

unlawful discriminatory considerations should not be tolerated and ought not to have any influence on an employer's decisions. In my judgment, that principle is equally applicable where the objective is to protect whistleblowers, particularly given the public interest in ensuring that they are not discouraged from coming forward to highlight potential wrongdoing. @ [43]

143. This approach does not revive the 'but for' test. 63

144. The standard of proof in dismissal cases is different. Instead, sl 03A requires that

the protected disclosure be `The reason (or if more than one, the principal reason) for

the dismissal" A `material influence' is not good enough. This is anomalous but `if

Parliament had wanted the test for the standard of proof in s47B to be the same as

for unfair dismissal, it could have used precisely the same language, but it did not do

so. ,'64

Interim relief and other interlocutory possibilities

145. Interim relief under s128 and s129 ERA is a key tool in a Claimant's armoury. It

applies only to dismissals, including constructive dismissals. Its use is limited by

sl28(1) in that a relevant complaint must first have been presented to the ET; and by

s128 (2) in that an application for interim relief must be presented before the end of

the 7 days immediately following the EDT. By s128(3), the application must be

determined "as soon as practicable after receiving the application ". Section 128(4)

requires giving an employer 7 days notice before the hearing, while s128(5) prevents

postponement save where "special circumstances .... justify ... doing so".

146. As many whistleblowing dismissals are summary, the chances are that the ET1

will be rushed, perhaps defective, and the Claimant will not have had time to make

good any defects, so increasing the prospect of a successful strike out. The

converse is that an employer may equally be caught hopping.

62 Fecitt @ [45] 63 Fecitt @ [65] per Davis LJ 6a Fecitt @ [45]


147. For an employee who is still employed the traditional option has been to consider

injunctive relief to restrain an actual or impending breach of contract. However, the

same effect may be achieved, more simply and without exposure to a serious costs

risk, by presenting, when still employed, a detriment claim with its more generous

standard of proof. Ally that with an application for an urgent Case Management

Discussion and early hearing and the threat of an injunction if a disciplinary

procedure is not stayed pending the outcome of the detriment claim. If the response

is dismissal, the leg work for an ET1 and interim relief application has already been

done.

148. If interim relief is granted, the tribunal will make a s129 order for the continuation

of the contract of employment.

149. The test is found in s129(1):-

'This section applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find ... that the reason (or, if more than one, the principal reason) for his dismissal is [having made a protected disclosure]

150. In Ministry of Justice v Sarfraz [2011] IRLR 562, EAT, Underhill P held that:

`... to make an order under ss.128-129 the judge had to have decided that it was likely that the tribunal at the final hearing would find five things: (1) that the claimant had made a disclosure to his employer; (2) that he believed that that disclosure tended to show one or more of the things itemised at (a)-(f) under s.43B(1); (3) that that belief was reasonable; (4) that the disclosure was made in good faith; and (5) that the disclosure was the principal reason for his dismissal. @ [14]

151. In the context of s129(1) the meaning of 'likely' is not:

.....

simply 'more likely than not' - that is at least 51% - but connotes a significantly higher degree of likelihood. Slynn J [in Taplin] understandably declined to express that higher degree in percentage terms, since numbers can convey a spurious impression of precision in what is inevitably an exercise depending on the tribunal's impression. @ [17]

152. Interim relief is not restricted to simple factual disputes. In Raja v Secretary of

State for Justice EAT/364109, 15.2.10, HHJ Birtles, where over 640 pages had

been put before the tribunal, the EAT held there was no statutory basis for such a

restriction.


Strike out?

153. Strike out applications are sometimes successful; more so where the issues are

narrow so that it is easier to show "no reasonable prospect of success': ABN Amro

(see below) offers some support to a Respondent. On an application, the more likely

result is a deposit order under r20 if the claim has "little reasonable prospect of

success" Relevant tactical considerations include preventing mission creep i

pinning down a claimant's case at an early stage, in particular, befor e

disclosure.

154. In Ezsias v N Glamorgan NHS Trust [2007] ICR 1126), Maurice Kay U said at

paragraph 29:

"It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence. It was an error of law for the Employment Tribunal to decide otherwise. In essence that is what Elias J held. I do not consider that he put an unwarranted gloss on the words "no reasonable prospect of success". It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level."

155. More recently, the Court of Appeal reviewed the approach to strike out in A v B

[2010] EWCA Civ 1378, [2011] ICR D9 (8.12.10). From the judgment, two key issues

can be identified [59]:

• First, whether or not there are relevant issues of fact to be determined;

• Secondly, whether the outcome of that determination can properly be foreseen at

the strike out stage.

156. In this exercise, the facts relied upon in support of the claim must be taken to be

provable for the purposes of a striking out application "unless the opposite can be shown

by clear evidence which is not seriously disputable" [11 ]

157. If the claim has the elements of a prima facie case, then a further consideration is

whether "there remains a prospect which is more than fanciful that [the alleged

discriminator] might not succeed in discharging the reverse burden of proof."A v B


@ [61] Analogously in detriment cases, it is only if there is some prospect, going

beyond the fanciful, of the alleged victimiser failing to provide a genuine explanation

under s48(2) that excludes subjecting the worker to whistleblowing detriment, that

the claim should not be struck out, as was the case in A v B.

158. Even if a clear factual dispute can be identified, that is not determinative. It

depends on how it relates to the claim[s]. The more relevant or central to the claims,

the more exceptional it would be to strike out that element (cf Ezsias ).

159. In ABN Amro Management v Hogben (UKEAT/0266/09, 20 November 2009)

Underhill P at [7] set out the general approach, confirming that plainly a case may

struck out in appropriate circumstances, otherwise there is no purpose in rule

18(7)(b). Lord Steyn's observations in Anyanwu v South Bank Students Union

[2001 ] ICR 391 about the caution to be exercised in using the power to strike out in a

discrimination case are well known: see [24] (at p. 399). As Underhill P emphasises:

"... it is fair to note that the force of those observations will inevitably vary depending on the nature of the particular issues; and Lord Hope in the same case made clear that in an appropriate case a claim for discrimination can and should still be struck out if the tribunal can be satisfied that it has no reasonable prospect of success: see para. 39 (at p. 404)." [7]

160. In ABN Amro, Underhill P found that the EJ was wrong not to strike out a claim of

discriminatory selection for redundancy which was "prima facie implausible to the

point of absurdity" as one claim rested on an age difference of 9 months, the other

on a difference of 7 years [11]. He described the prospect of proving a prima facie

case of age discrimination in relation to non-appointment to either role as `fanciful"

[15] Apart from the interviewer thinking that the Claimant was a year or two younger

than he in fact was, Underhill P saw "nothing else to indicate even a possibility of age

discrimination." He felt entitled to substitute his own assessment for that of the

Employment Judge because of "The absence .... of any basis for supposing that

cross-examination could advance the Claimant's case means that the Judge ought

not to have attached any weight to that factor." [ 15]

SALLY ROBERTSON

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