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Whistleblowing: Kraus v Penna

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The Court of Appeal has handed down a decision overturning the frequently criticised EAT case of Kraus v Penna, which was authority for the proposition that a disclosure is not a 'qualifying disclosure' unless a criminal offence, capable of breach, had actually existed.

The Court of Appeal has now held that it is sufficient if an employee reasonably believes that such a criminal offence (or legal obligation) exists. It does not actually need to exist.

In deciding the meaning of 'reasonable belief', the Court decided that the words did not introduce an additional requirement for the employee to be right. Consequently, the test of 'reasonable belief' was a subjective one. Applying this, the Court decided that the appellant's belief that the information he was disclosing met the criteria in section 43B(1)(a) was plainly reasonable' even though it turned out to be wrong.

Babula v Waltham Forest