Whistleblowing; unfair dismissal; burden of proof. The Court of Appeal held that where an employee lacks the qualifying service for an ordinary unfair dismissal claim but seeks to bring a claim of automatic unfair dismissal (e.g. under s.103A ERA 1996 for protected disclosure), the evidential burden of proving jurisdiction lies on the employee. The employee must show that the reason (or principal reason) for dismissal was the inadmissible reason, rather than the employer having to prove it was not. Applied in Ross v Eddie Stobart Ltd [2013] UKEAT 0068/13/RN.
Whistleblowing; 'public interest'; a disclosure about a breach of the employee's own contract is not usually in the public interest.
Whistleblowing; reasonable belief. The EAT held that the assessment of whether a belief is reasonable under s.43B ERA 1996 depends on the facts as believed by the employee at the time of the disclosure, not their objective truth. A mistaken belief can be reasonable, and the factual accuracy of the disclosure is relevant only as an aid to determining whether the belief was indeed held and was reasonable.
Whistleblowing; burden of proof; once the employee proves a disclosure and detriment, the employer must prove the ground was not the disclosure.
Whistleblowing; detriment; causation. 'On the ground that' in s.47B ERA 1996 requires analysis of the employer's mental processes: the protected disclosure must itself have motivated (consciously or unconsciously) the act or omission complained of. A 'but for' connection is not enough — mishandling a grievance about a disclosure is not automatically a detriment on the ground of the disclosure.
Whistleblowing; a disclosure must convey 'information' (facts), not just a bare allegation or opinion.
Whistleblowing; good faith; (Historic) disclosures made with an ulterior motive (personal antagonism) were not protected.
Whistleblowing; a worker can make a protected disclosure even if their belief in the wrongdoing is mistaken, provided it is reasonable.
Whistleblowing; an employee can be fairly dismissed for the *manner* of the disclosure (hacking IT systems) rather than the disclosure itself.
Whistleblowing; 'Worker' status; covers those introduced by an agency but working through a Personal Service Company (PSC).
Whistleblowing; time limits; s.48(3) ERA 1996. The Court of Appeal held that a pre-hearing review should not determine limitation questions without hearing evidence. A series of apparently unconnected acts or failures could be shown to be 'similar' within the meaning of s.48(3) if all were done on the ground that the employee made a protected disclosure (Sedley LJ at para 41). The case also confirms that under s.48(2), once a complaint is properly made out, the burden is on the employer to show the ground on which any act or failure was done (Mummery LJ at para 16).
Whistleblowing; unfair dismissal; burden of proof as to the reason for dismissal. The legal burden of proving the reason for dismissal rests on the employer throughout, and it is for the employer to show that the reason was not the protected disclosure. The employee bears only an evidential burden: it is enough for her to challenge the employer's evidence and to produce some evidence of a different reason. The tribunal is not obliged to accept the reason advanced by either party, and rejecting the employer's reason does not compel a finding that the disclosure was the reason.
Whistleblowing; s.43B ERA 1996; definition of 'disclosure of information'. The EAT held that communicating information means conveying facts, not merely making allegations or assertions. A statement that 'there are serious problems with the accounts' is an allegation; a statement of specific facts (e.g. identifying particular transactions) constitutes disclosure of information. The distinction is important: a bare assertion or complaint does not satisfy the s.43B threshold, however strongly felt. The qualifying disclosure must convey information of some kind, which the person receiving it does not have or has not been given.
Whistleblowing; causation; the disclosure need only 'materially influence' the employer's negative treatment (s.47B).
Whistleblowing; dismissal; if the decision-maker is manipulated by a manager with a grudge (Iago situation), dismissal is unfair.
Whistleblowing; reasonable belief; professional knowledge. The EAT held that the 'reasonable belief' test in s.43B ERA applies an objective standard to the personal circumstances of the individual discloser. Those with professional or insider knowledge, such as a consultant surgeon raising concerns about clinical standards, are held to the standard of what a person in their position would reasonably believe. A belief based on rumour or uncorroborated suspicion will not suffice; there must be some evidential basis for the belief.
Whistleblowing; s.103A ERA 1996; burden of proof. The EAT (HHJ Peter Clark) confirmed that the burden of proving the whistleblowing reason for dismissal under s.103A lies on the employee who has insufficient continuous service to bring a claim of ordinary unfair dismissal, applying Smith v Hayle Town Council [1978] ICR 996. However, the case was not decided on the burden of proof at the ET — the finding as to reason (conduct) was not perverse.
Whistleblowing; dismissal; a distinction can be drawn between the *fact* of the disclosure and the *manner* (unreasonable) in which it was made.
Trade union activity; detriment; burden of proof; while the burden shifts to the employer to explain the treatment, the tribunal must focus on the actual reasons in the mind of the decision-maker.
Whistleblowing; dual 'employers' possible; agency workers can be 'workers' of both the agency and end-user for whistleblowing protection.
Whistleblowing; public interest; disclosure about own working conditions; strike-out. A complaint about the claimant's own cramped working conditions and their effect on her health was arguably a protected disclosure made in the reasonable belief it was in the public interest, and should not have been struck out without hearing evidence: post-Chesterton, a disclosure serving the worker's own interest can still satisfy the public interest test, and disputed public-interest questions are rarely suitable for summary determination.
Whistleblowing; causation; the disclosure was not the cause of the dismissal.
Whistleblowing; public interest; a disclosure affecting a small group (e.g. 100 managers) satisfies the 'public interest' test.
Whistleblowing; a disclosure is protected even if the employer genuinely believes it is not; the test is objective.
Whistleblowing; worker status; s.43K ERA 1996; extended definition. The Court of Appeal held that the extended worker definition in s.43K applies on a per-respondent basis. A person who is a s.230(3) employee or worker of one party is not thereby excluded from being a s.43K worker of a different party who substantially determines the terms on which the individual is engaged. The opening words of s.43K(1) ("an individual who is not a worker as defined by s.230(3)") mean only that the provision is engaged where the individual is not a s.230(3) worker in relation to the respondent in question. Practical consequence: a doctor employed by an NHS Trust could bring a whistleblowing claim against Health Education England (the body that substantially determined the terms of his training placement) notwithstanding his employment contract with the Trust. Key authority for end-user / agency / secondment whistleblowing claims.
Whistleblowing; established that 'allegations' can also constitute 'information' for the purposes of a protected disclosure.
Whistleblowing; established that s.47B(2) only bars direct claims against employers for dismissal, allowing employees to bring detriment claims for dismissal against co-workers (and vicariously against employers) under s.47B(1A).
Whistleblowing; unfair dismissal; if a manager determines the decision to dismiss by hiding the truth (manipulation), that reason is attributed to the employer.
Whistleblowing; public interest; personal-interest disclosure. A probationary worker's complaint that her charity employer's failure to provide a personal phone and secure storage breached the Data Protection Act in respect of service users' sensitive personal data was capable of being a qualifying disclosure even though raised in the context of her own performance dispute: the statutory question is whether the worker reasonably believed the disclosure was made in the public interest and tended to show a breach of a legal obligation, not whether it was in fact in the public interest, and the ET erred by dismissing it as a matter personal to her.
Whistleblowing; aggregation; disclosures can be aggregated to create a 'cumulative' picture, but must still convey information.
Whistleblowing; qualifying disclosure; public interest; legal obligation. A consultant solicitor's disclosures that a client was being overcharged, in breach of the firm's legal and regulatory obligations, could be made in the reasonable belief they were in the public interest even though only one client was affected and the discloser had personal motives: there is no requirement that a disclosure protect a section of the public, and the tribunal erred by focusing on motivation rather than reasonable belief, and by ignoring the Chesterton factors (identity of the wrongdoer — a solicitors' firm subject to high standards of integrity — and the regulatory nature of the wrongdoing). The EAT also held 'little influence' is not the s.47B causation test, which is material influence. Note: despite occasional shorthand, the appeal turned on s.43B, not the s.43K extended worker definition.
Whistleblowing; separability; a dismissal can be for the *manner* of the disclosure (unreasonable conduct/behavior) rather than the disclosure itself.
Whistleblowing; compensation; contracting out. An award exceeding GBP 1.6m was upheld. A contractual provision purporting to cap net damages at GBP 270,000 could not be given effect: the statutory restrictions on contracting out apply, and the tribunal did not err in declining to treat the cap as limiting what was just and equitable. Contains at [34]-[35] a review of Courage Take Home Trade Ltd v Keys, about the reasoning of which HHJ Auerbach recorded misgivings.
Whistleblowing; confidentiality; being a whistleblower does not justify misappropriation or retention of employer's documents post-termination.
Whistleblowing; detriment claims requires a clear causal link between the protected disclosure and the treatment.
Whistleblowing; victimization found for disclosures made six years previously, showing the long tail of liability.
Whistleblowing; charity trustees; discussed whether trustees or volunteers can have 'worker' status for whistleblowing protection.
Whistleblowing; analyzed the link between detriment and subsequent dismissal.
Whistleblowing; the Court of Appeal called for legislative reform, stating they would have departed from Timis v Osipov if not bound by it; confirmed that an employee can bring a dismissal detriment claim against their employer under s.47B ERA 1996.
Whistleblowing; conjoined appeal with Rice v Wicked Vision; Court of Appeal bound by Osipov to allow detriment claims for dismissal under s.47B ERA 1996, but invited the Supreme Court or Parliament to resolve the conflict.
Whistleblowing; s.43B(1) ERA 1996; 'tends to show'. The EAT (HHJ Auerbach) confirmed that the words 'tends to show' in s.43B(1) can make a real difference: an employee may reasonably believe that certain evidence tends to support the conclusion that a relevant failure exists or is likely to occur, even if it would not be reasonable to believe that it definitely does exist. The test is not whether the employee reasonably believes the failure itself is proven.
Whistleblowing; (1) composite liability under s.47B(1A) is impermissible, an innocent decision-maker cannot be held personally liable for the detriment of dismissal by attributing to them the tainted motivation of a manipulating colleague; (2) Jhuti does not apply to s.47B(1A) personal co-worker liability claims; (3) 'dismissed' under s.47B(1A) means the act of the person who actually dismissed, not action contributing to dismissal by another; (4) s.103A complaint remitted to tribunal to properly apply the Jhuti manipulation analysis.
Whistleblowing; s.43D ERA; disclosure to former solicitor; lawful excuse to breach of confidence. The High Court held that (1) the whistleblowing regime provides a public interest defence to breach of confidence at common law, adopting Racing Partnership's lawful excuse analysis; (2) s.43D protection for disclosures made 'in the course of obtaining legal advice' is not restricted to qualified lawyers but extends to any person whom the worker believes is competent to provide legal advice; (3) protection turns on timing of the worker's reasonable belief: initial disclosure to the same recipient before belief formed was not protected, but subsequent disclosure after advice causing belief was protected; (4) disclosure to a non-legal third party was not protected where not made for the purpose of obtaining legal advice.
Whistleblowing; separability; distinguished between the disclosure itself and the conduct associated with it.
Whistleblowing; injury to feelings awards in whistleblowing detriment cases under s.47B ERA.
Whistleblowing; public interest. A disclosure by a group of employees about a matter specific to their own contractual terms — there, unfair distribution of overtime — is capable of satisfying the public interest test in s.43B(1) ERA 1996; strike-out overturned as inconsistent with Chesterton.
Whistleblowing; reasonable belief in the public interest. Disclosures which might objectively be in the public interest are not qualifying disclosures where the worker did not reasonably believe them to be so and raised them purely out of concern for her own personal responsibility and liability.
Whistleblowing; personal liability; a 'composite approach' to liability under s.47B(1A) ERA 1996 is impermissible, the knowledge and motivation of one employee cannot be attributed to an innocent decision-maker to establish personal liability. Reynolds v CLFIS applied to the whistleblowing detriment regime.