Whistleblower Protection: What is a protected disclosure? Considering the five-stage test

In Martin v London Borough of Southwark, the Employment Appeal Tribunal (EAT) reviewed the decision of the Employment Tribunal (London South) that Mr. Martin’s disclosures did not amount to qualifying disclosures protected by law.

Background

In 1999, the Public Interest Disclosure Act 1998 (PIDA) inserted provisions into the Employment Rights Act 1996 (ERA) that protect employees and workers from being subjected to a detriment as a result of making a protected disclosure. It also protects employees from a dismissal if the sole or principal reason for the dismissal is that the employee made a protected disclosure.

Why can such protection be important

The protection afforded to whistleblowers by the ERA can be important for a variety reasons and non-exhaustive examples include:

1.      In cases where there has been a dismissal:

• the dismissal will be deemed automatically unfair if the reason for it was the protected disclosure by the employee bringing the claim.
• an employee can consider seeking interim relief – this is when the tribunal orders the employee is placed back into their job whilst the case is being considered; and
• there is no cap on compensation (in comparison to ordinary unfair dismissal claims);
• A qualifying period of service is not required to receive protection (in comparison to ordinary unfair dismissal claims);

2.      In cases where an employee has suffered a detriment;

• an employee can claim compensation for injury to feelings suffered.
• an employee can remain in employment whilst at the same time seeking a judgment that their employer is acting unlawfully; and

What is a qualifying disclosure?

The ERA says that a qualifying disclosure is a:

1. disclosure of information which,
2. in the reasonable belief of the worker making the disclosure, is
   1. made in the public interest and
   2. tends to show one or more of the following
      1. that a criminal offence has been committed, is being committed or is likely to be committed,
      2. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
      3. that a miscarriage of justice has occurred, is occurring or is likely to occur,
      4. that the health or safety of any individual has been, is being or is likely to be endangered,
      5. that the environment has been, is being or is likely to be damaged, or
      6. that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

Mr. Martin alleged that he made protected disclosures and as a result had been subjected to a detriment. Mr. Martin made five disclosures in respect of which he was seeking protection. These related to working excess hours which he stated breached “‘statutory directed time”. The tribunal determined that that none of disclosures relied upon were protected disclosures. As such, his claim failed. Mr. Martin appealed.

The EAT gave a useful summary of the case law relevant to protected disclosures. In particular, it re-emphasised that:

• a claimant does not need to demonstrate the precise legal obligation that has been breached.
• on the question of whether a belief is reasonably held, the correct test is to assess whether the Claimant actually believes a legal obligation has or may be breached (subjective) before subjecting that belief to a reasonableness analysis (objective).
• that having a personal interest in the subject does not preclude a finding that the disclosure of information was also made in the public interest.

The EAT reviewed the Employment Tribunal’s approach as to whether Mr. Martin had made a qualifying disclosure. The EAT found the tribunal’s approach to examining this issue was incorrect. It re-iterated that the following 5-stage test should be applied in determining whether a disclosure is protected:

1. There must be a disclosure of information;
2. The worker must believe the disclosure is made in the public interest;
3. That belief must be reasonably held;
4. The worker must believe that the disclosure tends to show one of the matters in s43B(1)(a)-(f) Employment Rights Act 1996, e.g. a criminal offence has been committed; and
5. That belief must be reasonably held.

The EAT highlighted the importance of considering all five questions and determining which criteria has been met.  In the first instance, the Tribunal did not concentrate on the criteria. Instead, it found that Mr. Martin was raising a “potential concern” or enquiry as opposed to asserting non-compliance with a legal obligation on the part of his employer. However, the EAT was clear that using cautious language (and the absence of a direct allegation) did not mean that Mr. Martin could not have reasonably believed that the information he disclosed tended to show a failure to comply with a legal obligation.

The case was remitted to a different tribunal to consider Mr. Martin’s claims. The judgment demonstrates the importance of considering and applying the correct test when assessing if a disclosure amounts to a protected disclosure.

As Mr. Martin’s case shows, whistleblowing claims can be complex. Demonstrating why a disclosure is protected is just one hurdle that a claimant will need to prove in order to be successful in their claim. Waterfront Solicitors’ Employment Team are experienced in bringing and defending whistleblowing claims.