Whistleblowing - Case Round-Up: September 2018

In this month's case round-up, Mark Shulman, consultant solicitor with Keystone Law, looks at recent cases on what constitutes a qualifying disclosure, the causative link between detriments and protected disclosures and how ETs should approach applications for interim relief.

Mark Shulman**, Consultant Solicitor at Keystone Law
Qualifying disclosure
*Section 43B of the ERA 1996 provides that a "qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—…"(specified matters). What is meant here by "information"? The Court of Appeal has provided recent guidance in [Kilraine v London Borough of Wandsworth ]()*[2018] EWCA Civ 1436.

The Claimant, an Education Achievement Project Manager, made a number of complaints about other staff. It was alleged that protected disclosures arose when making those complaints. An ET had to decide as a preliminary issue whether four alleged disclosures qualified as protected disclosures for the purposes of section 43B. The ET decided that three of the four allegations of protected disclosures should be struck out.

The issue before the Court of Appeal concerned two of the alleged protected disclosures which had been struck out:

* a letter from the Claimant which had set out a complaint that she had not been included in a meeting of the Performance and Standards Monitoring Group to present an annual report. Specifically, a key sentence in the letter stated that "Since the end of last term, there have been numerous incidents of inappropriate behaviour towards me, including repeated sidelining, and all of which I have documented".

The ET directed itself by reference to the EAT's previous guidance in Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38 and held that the letter "does not disclose any information. Instead it makes allegations".

* an email from the Claimant to the HR Department within the Council's education directorate. That email stated that a named manager "…did not support me, as she claims, when I reported a safeguarding issue during [a meeting…]. Her response, which shocked me was 'I can't comment, I am never there during the school day, only before … or after … so I can't comment'. This was, repeated, belittling and I tried very hard to engage her as my line manager in the report."

The ET gave two reasons why this disclosure did not amount to a qualifying disclosure. Firstly, the email did not disclose any "information" – it amounted only to the making of allegations; secondly the Claimant had not articulated the alleged breach of any legal duty to her, or shown that she reasonably believed that there was such a duty.

The EAT dismissed her appeal (partly for reasons different from the ET) and the matter came before the Court of Appeal.

"Information" v "allegation"
The CA explained that the concept of "information" as used in section 43B(1) is capable of covering statements which might also be characterised as "allegations". But section 43B (1) of ERA 1996 should not be glossed to introduce a rigid dichotomy between these two terms. The question in each case is whether a particular statement or disclosure is a "disclosure of information which…tends to show one or more of the [matters set out in sub-paragraphs (a) to (f)]". Grammatically, the word "information" had to be read with the qualifying phrase, "which tends to show [etc]". There has to be sufficient factual content and specificity capable of tending to show one of the relevant matters in subsection (1). That was a matter for evaluative judgment by the ET in the light of all the facts.

In Cavendish Munro the EAT had said that the ordinary meaning of giving "information" is conveying facts (e.g. communicating information about the state of a hospital: "The wards have not been cleaned for the past two weeks"). But a statement that "you are not complying with Health and Safety requirements" would be an allegation not "information".

In the present case the EAT had been correct in its reasoning and conclusion that the contents of the letter were not a qualifying disclosure. Unlike the ET, the EAT had not treated the concepts of "information" and "allegation" as mutually exclusive. The EAT was correct that the letter did "not sensibly convey any information at all" and the word "inappropriate" in the Claimant's letter could cover a multitude of sins.  The CA could not say that the EAT's assessment was "wrong", as would be required if the appeal were to be upheld.

Were the contents of the Claimant's letter to be viewed differently by virtue of the context in which it was written? In other words, was it embedded in and forming part of an ongoing series of communications? Not in this case said the CA. It agreed that whether a particular disclosure satisfies the test in section 43B (1) should be assessed in the light of the particular context in which it is made. The CA used the example of a dirty hospital: if a worker brings his manager down to a particular ward in a hospital, gestures to sharps left lying around and says: "You are not complying with Health and Safety requirements", the statement would derive force from the context in which it was made and taken in context would constitute a qualifying disclosure. But the Claimant had not identified any relevant context which might have informed or supplemented the meaning of the letter.

Whilst the Claimant's email did involve disclosure of matters which had sufficient factual content so as potentially to qualify as disclosure of information (as decided by the EAT on appeal), there were still other issues. On the materials and submissions presented to the ET it was plainly entitled to make the assessment it did that the claim had no real prospect of success - there was nothing to suggest that the Claimant had a relevant legal obligation in mind at the material time when she made the disclosure. She could not therefore satisfy the subjective requirement in section 43B (1) that she believed at the time of the disclosure that the information in it tended to show that someone had failed, was failing or was likely to fail to comply with a legal obligation. Accordingly, the ET was entitled to strike out that part of her claim, as it did.

Readers should note that this decision relates to the law prior to 25 June 2013 when section 43B was amended to include the phrase, "is made in the public interest and tends to show etc …", to impose an additional public interest requirement.*

Under section 47B of ERA 1996, "A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."

In [Patel v Surrey County Council ]()UKEAT/0178/16/LA and [Metcalf v Surrey County Council ]()UKEAT/0179/16/LA, the question arose as to whether detriments were on the grounds of protected disclosures.  The EAT held that an ET was wrong in its approach when considering whether there had been a breach of section 47B.

Dr P (a Consultant Occupational Physician) and Mrs M (an Occupational Health Nurse) were employed in the Occupational Health Department ("OH Department") of Surrey Fire and Rescue Service for which Surrey County Council was responsible. From very early on in their employment the Claimants expressed serious concerns about practices and procedures in the OH Department. They expressed concerns about the clinical practice, conduct and competence of an OH Manager, Ms B, in the light of poor clinical governance and made disclosures about alleged bullying, harassment and victimisation by Ms B.

The First Claimant was dismissed and the Second Claimant resigned from her employment. Both Claimants lodged claims of whistleblowing detriment and unfair dismissal. By a majority, the ET dismissed all whistleblowing complaints by both Claimants. Both Claimants then appealed to the EAT.

Material influence
Had the ET properly interpreted and applied section 47B of ERA 1996, as explained by the Court of Appeal in [Fecitt v NHS Manchester ]()[2012] IRLR 64? No, said the EAT. In Fecitt, Lord Justice Elias had held that:

"45. … s.47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower. If Parliament had wanted the test for the standard of proof in s.47B to be the same as for unfair dismissal, it could have used precisely the same language, but it did not do so."

In the present case, various detriments to the Claimants had been admitted by the employer. But were these detriments on the grounds that the Claimants had made protected disclosures?

The ET had referred in various places in its decision to 'the reason' for the treatment, 'by reason' and whether the detriment was 'because' of the protected disclosures. The EAT considered that this was the language of causation rather than "material influence". The test for automatically unfair dismissal under section 103A of ERA 1996 is that the protected disclosure must be the sole or principal reason for the dismissal. However, the test for a claim under section 47B of ERA 1996 is different - it is whether the protected disclosure "materially influences" in the sense of being more than a trivial influence on the employer's treatment of the whistleblower. The findings by the ET did not support a conclusion that protected disclosures played no part in the alleged detriments. Looking at various conclusions of the ET, it had failed to apply the correct test of "material influence".

"Rolled-up approach"
In a separate ground of appeal the issue arose as to whether the ET had also erred by adopting a "rolled up approach" to the issue of protected disclosures.

All parties agreed that in accordance with the guidance given by HH Judge Serota QC in [Blackbay Ventures Ltd v Gahir ]()[2014] IRLR 416, ETs should take a step by step structured approach to claims alleging detriment for having made protected disclosures. The EAT confirmed that the disclosures should not be lumped together as the ET must identify which disclosure is alleged to have attracted which detriment. A rolled up approach should not therefore be adopted. But in the present case the ET had failed to state which of the disclosures they found had been made out and which had not. It was not satisfactory for the ET to have stated "… It was not proportionate to make individual findings about each and every disputed disclosure. …".

The ET had erred in failing to set out and to consider each disclosure and each detriment to which it was said to relate, making findings of fact in relation to each. In order to reach a determination as to whether a particular detriment was on grounds of an alleged related protected disclosure, the disclosure and detriment need to be considered in a "related pairing". The failure to consider the individual detriments alongside the individual protected disclosures may have led the ET to concentrate on the reasonableness of the Respondent in imposing a detriment for the reasons they had given, rather than considering and deciding whether the detriment was "materially influenced" by a particular disclosure. This failure by the ET to adopt a structured approach to the claims (as set out in Blackbay), was not a defect in form, but of substance.

Absence of comparator
Was the ET required to consider a comparator? No, said the EAT. The ET's decision stated that "…that there was no comparator evidence at all put forward by the Claimants in support of their various contentions that their treatment was by reason of having made protected disclosures".  This was also an error. The EAT confirmed that whilst consideration of a comparator is not ruled out and may be of assistance in some cases in deciding whether a detriment was materially influenced by a protected disclosure, no comparator is required to establish a section 47B claim.

Interim relief
How should ET's approach an application for interim relief? The EAT decision in [Wollenberg v Global Gaming Ventures (Leeds) Ltd & Anor]() UKEAT/0053/18/DA provides guidance.

The Claimant was the part-time Executive Chairman of a company which was formed to run a casino in Leeds. The Claimant made serious accusations against the CEO and following a breakdown of relations between the Claimant and the CEO, the Claimant was summarily dismissed on grounds of alleged gross misconduct. He claimed automatically unfair dismissal (under section 103A of ERA 1996) by reason of having made protected disclosures and he sought interim relief at the ET. Under section 128 of ERA 1996, interim relief will keep the contract of employment in force for limited purposes until determination of the claim of unfair dismissal.

"Pretty good chance"
Section 129(1) sets out the test which must be satisfied before the application is granted. It must appear to the ET that it is likely that on determining the substantive complaint the reason for dismissal will be the (in this case whistleblowing dismissal) reason alleged by the employee.

The EAT referred to Taplin v C Shippam Ltd [1978] ICR 1068 and [Ministry of Justice v Sarfraz ]()[2011] IRLR 562 as leading cases on the tests to be applied by the ET. The EAT said that the EJ must make a broad assessment deciding the question of whether the claim under section 103A is likely to succeed. This does not simply mean "more likely than not". It connoted a significantly higher degree of likelihood. The ET had to ask itself whether the Claimant has established "a pretty good chance of succeeding" in the final application to the ET. The ET will not hear oral evidence unless it makes a positive decision to do so (see Rule 95 of the ET Rules).

Requirement for reasons
Although reasons must be given for the decision on an application for interim relief, Rule 62(4) provides that the reasons given for any decision shall be "proportionate to the significance of the issue and for decisions other than judgments may be very short".

The requirement to give reasons in the context of an application for interim relief was previously considered by the EAT in [Al Qasimi v Robinson]() UKEAT/0283/17:

"The Employment Judge also had to be careful to avoid making findings that might tie the hands of the ET ultimately charged with the final determination of the merits of the points raised. His task was thus very much an impressionistic one: to form a view as to how the matter looked, as to whether the Claimant had a pretty good chance and was likely to make out her case, and to explain the conclusion reached on that basis; not in an over-formulistic way but giving the essential gist of his reasoning, sufficient to let the parties know why the application had succeeded or failed given the issues raised and the test that had to be applied."

EJ's reasoning
Had the EJ in the present case complied with the requirement to explain "the essential gist of his reasoning, sufficient to let the parties know why the application had succeeded or failed"? No, said the EAT. After analysing the EJ's decision it was not possible to find reasons which properly explained his conclusions for rejecting the claim for interim relief – not even the gist of the reasoning. Therefore the EJ's reasons could not stand, the appeal was allowed and the case was remitted to a different EJ.

Nature of interim relief hearings
As a comment, the EAT made the point that interim relief hearings were intended to be short and only a broad assessment by an EJ (who cannot be expected to grapple with vast quantities of material). There was no great reputational importance in the outcome of an interim hearing application – it would only be a preliminary view taken by an EJ in a case which in due course would be the subject of a detailed investigation at a full hearing.

Mark Shulman** is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator.

Published: 07/09/2018 17:19

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