EAT Ruling Clarifies The Approach That A Tribunal Should Take To Claims Concerning Whistleblowing

A recent case in the Employment Appeal Tribunal (EAT) has clarified the approach that the Tribunal should take to claims concerning protected disclosures (“whistleblowing”).

Martin v London Borough of Southwark and others

Case facts

The Claimant in this case was a teacher. He was concerned that he and other teachers were working too many hours (the hours worked by teachers being governed by statutory guidance on “Directed Time”). He had raised this issue on multiple occasions but his emails took the form of queries where he asked for explanations or consideration rather than clear allegations.

The original Employment Tribunal held that this did not amount to a protected disclosure because, in their view, it was a query rather than a disclosure of information tending to show a breach of a legal obligation.

They rejected the Claimant’s claim that he had been subjected to detriments on grounds of having made a protected disclosure.

Findings

The EAT found that the Tribunal had failed to take the proper, structured approach to the issue of whether there had been a “qualifying disclosure” (for further details of what a qualifying disclosure is, have a read of this article) for the purposes of the legal protection.

The EAT said that the correct approach would be for the Tribunal to consider each of the necessary elements for a qualifying disclosure in turn:

1. Had there been a disclosure of information?
2. Did the Claimant believe that the disclosure was made in the public interest?
3. Was that belief reasonable?
4. Did the Claimant believe that disclosure tended to show a breach of a legal obligation?
5. Was that belief reasonable?

The EAT allowed the Claimant’s appeal and sent the case back to be dealt with afresh by a newly constituted employment tribunal.

Comment

The case of Martin v London Borough of Southwark and others serves as a good reminder of the complicated legal framework for whistleblowing claims.

Claimants who are successful in showing that they have made protected disclosures will benefit from legal protection from detrimental treatment and dismissal for reasons connected with those disclosures with no qualifying service period requirement.

Employers should be cautious when dealing with such claims because of the potential for unlimited compensation in dismissal claims and for awards for injury to feelings in detriment claims.