In a whistleblowing detriment case, does a tribunal need to make specific findings as to whether the Claimant subjectively believed the disclosure was in the public interest, and whether or not that belief was reasonable?
Yes, held the Court of Appeal in HCA International v Ibrahim.
The Claimant brought a claim for whistleblowing detriment. The disclosure relied upon was that there were false rumours circulating that he had been involved in breaches of patient confidentiality, and that a manager had behaved badly towards him. The tribunal, at a preliminary hearing, found that the disclosures were not made in the public interest but were rather made with a view to the Claimant "clearing his name and re-establishing his reputation".
In the period between the end of the tribunal hearing and the reserved judgment, the Court of Appeal had handed down the case of Chesterton v Nurmohamed, which confirmed that a tribunal needed to ask whether the Claimant subjectively believed that the disclosure was in the public interest, and whether that belief was reasonable.
The tribunal in this case had not done so, and had elided the two parts of the test (as well as focusing on the Claimant's motive rather than his subjective belief). Further, no doubt because the hearing pre-dated the decision in Chesterton, the Claimant had not been specifically asked at the tribunal about his subjective belief. The appeal was therefore allowed and the case remitted to the same tribunal for consideration of this point.
Thanks to Will Young of Outer Temple Chambers for preparing this case summary.