Protected Disclosures – October 2021

October 20, 2021

Every so often you come across ‘useful cases’. The case is not making any ground-breaking new statements on the law so-called ‘landmark’ cases. What they have in common is that within the case there is either a clear restatement of the law or the bringing together of principles found in more than one case. Ayodele Martin v London Borough of Southwark & The Governing Body of Evelina School EAT/2020/000432 is a useful case.

 

Section 43B of the Employment Rights Act 1996 (ERA) makes provision for disclosures that qualify for protection as follows (my underlining):

 

43B.— Disclosures qualifying for protection.

(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— …

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject [what the claimant was alleging in this case],

 

What was it about?

 

The claimant was concerned that teachers, including himself, were working in excess of “statutory directed time”.  As a result of his concern he wrote a series of emails raising this issue first with the Headteacher, then with the Chair of Governors, then with other Governors and finally with the Department of Education.

 

What did the Employment Appeal Tribunal think?

 

Each email was looked at by the Employment Tribunal and the Employment Judge and members concluded that none of the emails amount to a protected disclosure.

 

What did the Employment Appeal Tribunal think?

 

HHJ James Taylor in his judgment goes through a comprehensive analysis of the case law on what amounts to a protected disclosure. He first identifies the five elements which must be proved to find that a disclosure is protected (as identified in the case law) and then for each element he sets out the approach to be taken (again supported by the case law).

 

The five elements (already identified in Williams v Michelle Brown AM: UKEAT/0044/19/OO) are as follows:

 

  • There must be a disclosure of information.
  • The worker must believe that the disclosure is made in the public interest. If the worker does hold such a belief, it must be reasonably held.
  • The worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f).
  • If the worker does hold such a belief, it must be reasonably held.

 

What HHJ James Taylor makes clear is that these are steps to be gone through. He uses the phrase ‘structured approach’. In some cases one or more of these issues may not arise however each element must be established for a protected disclosure to be made out.

 

He allowed the appeal as the Tribunal had failed to follow this structured approach.

 

What can we take away?

 

This is the useful authority which you can now refer to when looking at whether a disclosure is protected. It is all there in one place.

 

In my last blog I highlighted the importance of getting the list of issues right – asking the right questions.

 

The list of issues in this case (found attached to the Employment Tribunal Judgment) and used by the Tribunal identified the following question in respect of whether the disclosure was a protected one:

 

Were these disclosures of information which, in the reasonable belief of the member making the disclosure, were made in the public interest and tended to show that a person was failing to comply with a legal obligation to which she was subject, as required by s43B ERA 1996?

 

It certainly contains all the necessary elements identified by HHJ James Taylor however it does not set them out in the form of separate clear questions for the tribunal to answer. A clearer list of issues would probably have looked more like this:

 

  1. Was there a disclosure of information by the claimant? [set the fa of each alleged disclosure]
  2. Did the claimant believe that the disclosure he made was in the public interest?
  3. If the claimant held such a belief was it held reasonably?
  4. Did the claimant believe that the disclosure tended to show one or more of the matters listed in [you would then identify the relevant sub paragraph]?
  5. If the claimant did have such a belief, was it reasonably held?

 

Setting out the questions/issues in this way would have assisted the  tribunal in addressing the five elements in a structured way. So the list of issues is not just about ensuring that your pleaded case is clearly set out it is also about ensuring that the tribunal approaches the case in a structured manner so minimising the risk of the tribunal getting it wrong. In short asking the right questions in the right order.

 

 

 

Peter Doughty

Tags:
Commercial, Employment, Family, General Civil, Insolvency, Property and Planning, Town and Village Greens, Will Disputes