| EMPLOYMENT — Protected disclosure — Unfair dismissal — Whether sufficient if employee holding reasonable belief — Employment Rights Act 1996, s 43A (as inserted by Public Interest Disclosure Act 1998, s 1)
Babula v Waltham Forest College [2007] EWCA Civ 174
CA: Thorpe, Thomas and Wall LJJ: 7 March 2007
Where an employee made a claim for unfair dismissal asserting that the dismissal was to be regarded as automatically unfair because he had made a protected disclosure, it was sufficient that he reasonably believed the matters that he relied on amounted to a criminal offence, or founded a legal obligation. He did not have to be able to point to an actual criminal offence or to an actual legal obligation.
The Court of Appeal so held in a reserved judgment in allowing an appeal brought by the employee, Michael Babula, against the decision of the Employment Appeal Tribunal (Judge Peter Clark sitting alone) on 17 May 2006 dismissing his appeal against the decision of an employment tribunal (Mr J Scannell sitting alone at Stratford) on 22 September 2005 striking out the employee’s claim against the employer, Waltham Forest College, on the ground that it had no reasonable prospect of success. The case was remitted to a fresh employment tribunal for case management and adjudication.
WALL LJ said that the appeal raised a short but important point of construction in relation to what had become known colloquially as the “whistle blowing” provisions in the Employment Rights Act 1996. Since the appeal raised a pure point of law which went to the jurisdiction of the employment tribunal to entertain the employee’s claim, the judgment was not addressed to the merits of the claim. S 43A of the 1996 Act (as inserted by s 1 of the Public Interest Disclosure Act 1998) defined a “protected disclosure” as a “qualifying disclosure (defined in s 43B) made by a worker in accordance with any of ss 43C to 43H. At the employment tribunal, the chairman took the view that he was bound by the decision of the Employment Appeal Tribunal in Kraus v Penna plc [2004] IRLR 260 that held that if the employer was not under any legal obligation, a worker could not claim the protection of the legislation by claiming that he reasonably believed that they were. In his Lordship’s judgment, whilst Kraus v Penna plc was correctly decided on its facts, the construction of s 43B(1)(b) was not a correct statement of the law and should not be followed. It was not permissible as a matter of construction to adopt a different interpretation of what was meant by “reasonable belief” when applying that phrase to any of the situations in s 43 B(10(a) to (f). However, his Lordship agreed with the appeal tribunal in Darnton v University of Surrey [2003] IRLR 133 that a belief could be reasonably held and yet wrong. The key to the tension between the authorities in the appeal tribunal lay in the misapplication in Kraus v Penna plc of what a different constitution of the appeal tribunal was saying in Darnton’s case. An employment tribunal hearing a claim for automatic unfair dismissal had to make three key findings. The first was whether or not the employee believed that the information he was disclosing met the criteria set out in one or more of the subsections in s 43 B(1)(a) to (f) of the 1996 Act. The second was to decide, objectively, whether or not that belief was reasonable. The third was to decide whether or not the disclosure was made in good faith. In that context, the word “belief” in s 43B(1) was plainly subjective. It was the particular belief held by the particular worker. Equally, however, the belief had to be “reasonable”.
That was an objective test. The decision of the Court of Appeal in Street v Derbyshire Unemployed Workers’ Centre [2005] ICR 97 supported this construction. That case decided that the concept of “good faith” (required there by s 43G(1)(a) of the 1996 Act, but equally applicable to s 43C(1)(a)) was not surplusage, but added an important element of protection for the employer. It meant that disclosure would not be protected if an ulterior motive was the predominant or a dominant purpose of the employee in making it.
Thomas and Thorpe LJJ agreed.
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