Should tribunals take a structured approach when assessing qualifying disclosures in whistleblowing cases?
Yes, held the EAT in Martin v London Borough of Southwark.
The Claimant was a teacher who had expressed concerns that he and other teachers were working excess hours, breaching 'statutory directed time'. The tribunal held that none of the five 'qualifying disclosures' relied upon were protected disclosures, so dismissed the detriment claims. The EAT held that in each instance, the tribunal had erred in its approach, and remitted the case to a new tribunal. The EAT re-iterated the 5-stage test from a number of authorities for determining if there has been a protected disclosure:
- There must be a disclosure of information;
- The worker must believe the disclosure is made in the public interest;
- That belief must be reasonably held;
- 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;
- That belief must be reasonably held.
The EAT stressed the importance of adopting a structured analysis to qualifying disclosures and working through all five stages, as it will clearly show which, if any, of the five necessary conditions are accepted or not, and it will also assist a tribunal to ensure and demonstrate that it has not confused or elided any elements of the 5-stage test.
The EAT noted that confusion had grown up about the distinction between disclosing 'information' on the one hand, and 'making an allegation' on the other, and re-stated the requirement for a statement or disclosure to have sufficient factual content and specificity to be capable of tending to show one of the matters listed in s43B(1).
Thanks to Ed McFarlane of Worknest LAW for preparing this case summary.