Whistleblowing is back in the news, with the Facebook whistleblower, Frances Haugen (Facebook Product Manager) testifying before the U.S. Senate at an internet safety hearing on Capitol Hill.
Here in the UK, the recent Employment Appeal Tribunal decision in Martin v London Borough of Southwark and the Governing Body of Evelina School (EA-2020-000432-JOJ) has clarified that whistleblowing disclosures must be assessed methodically before deciding whether it qualifies for protection.
Back in February 2019, our article was released setting out what a ‘protected disclosure’ is for the purposes of the whistleblowers protections from detriment and dismissal. Without a protected disclosure, a whistleblower’s claim that their detriment or dismissal was caused by it, would necessarily fail in this respect.
A qualifying disclosure is the information that a worker imparts, usually to their employer. In no particular order, the key ingredients to the disclosure is that there is information, reasonable belief, public interest and relevant failures. See our 2019 article for details of what constitutes a “relevant failure”.
The latest Employment Appeal Tribunal decision in Martin held that in order to properly analyse whether a qualifying disclosure was made, the employment tribunal should follow a structure examining each of the components set out above.
The facts of Martin were broadly that Mr Martin had raised written concerns about excessive working hours and lack of pay for a number of teachers on a number of occasions.
The employment tribunal held at first instances that these were not qualifying disclosures, and so his whistleblowing claim failed.
However, Mr Martin appealed and the EAT held that the case should be remitted to a freshly constituted employment tribunal to be re-heard as the first decision did not examine the key questions before reaching its conclusions.
The Legal Issue
Those key questions the tribunal should have considered, are neatly summarised in Williams v Michelle Brown AM (UKEAT/0044/19/00). These are:
- Has there been a disclosure of information (showing or tending to show a relevant failure)?
- Does the worker believe that the disclosure is made in the public interest.
- Is the worker’s belief be reasonably held.
- Does the worker believe that the disclosure tends to show a relevant failure.
Each of these issues are loaded with precedents, which further refine what each mean.
What Did the Employment Tribunal Miss?
Mr Martin had made multiple disclosures, which he relied on as whistleblowing. In each case, the employment tribunal missed out the step by step approach to determining whether they were protected disclosures.
The tribunal consistently failed to consider whether Mr Martin believed his disclosures to be in the public interest, instead ostensibly making their own ‘objective’ finding of whether they were in the tribunal’s belief in the public interest. Consequently, they also leapfrogged the steps of whether Mr Martin’s belief was a reasonable one.
In respect of Mr Martin’s fourth disclosure, the tribunal mistakenly became distracted by Mr Martin’s personal interest, concluding that it could not be both in the personal and public interest. However, the EAT stated, “The claimant could reasonably believe that the disclosure was made in the public interest even if his motive for making the disclosure was predominantly to advance his interest in not being required to work excessive hours” (para 27).
The tribunal committed errors when dealing with the quality of information disclosed too. Again, the step by step test dictates that the tribunal should have looked at whether Mr Martin believed he was disclosing a relevant failure, and then examine whether Mr Martin’s belief was a reasonable one to hold.
The tribunal also mistakenly badged one disclosure as an ‘enquiry’ and so concluding that it didn’t pass the test of ‘information’. However, the legal test should avoid an overly prescriptive approach to what amounts to information.
Finally, the tribunal made an error in law in finding that disclosures of information already known to the respondent could not be a disclosure of information. However, it is clear from the statute that this is not correct.
What is Next For Mr Martin?
The employment tribunal decision has been set aside by the EAT. The case has been sent back to the employment tribunal for a full re-hearing with a fresh tribunal to have the issues determined again.
Mr Martin put in five claims against his employer at various points in time. This EAT decision relates to his second, third and fourth claims which were lodged prior to his resignation on 17 December 2019.
The parties have therefore been engaged in litigation for approximately two years so far, with a further employment tribunal hearing to come now the case has been remitted. The EAT decision is a victory for Mr Martin, however would not necessarily mean that he is guaranteed to go on to win his tribunal claim.
The fresh tribunal who determines the outcome would be required to revisit the evidence of the disclosures he made, applying the correct tests to make a new finding as to whether they are protected disclosures. If they are, then the tribunal will then turn its mind to whether the detriments that Mr Martin asserts he was subjected to were in their judgment, on the ground that he made a protected disclosure.
Whistleblowing claims are notoriously complex, typically highly sensitive and often characterised by entrenched views held by both parties. In our experience, they also commonly consist of voluminous documentary evidence and lengthy witness evidence, covering sometimes years of history in the employment relationship.
They can be unwieldy and overwhelming for lay parties and costly for those who use legal representatives. The legal tests are continually evolving, highly fact sensitive making them one of the most technical types of claims (in our opinion) within the tribunal’s jurisdiction.
The Martin judgment forms a neat source of guidance for parties to assist them to focus attention in a methodical way to the key legal questions, organising the evidence they have and hopefully avoiding a common tendency to get lost in the detail.
Are You Looking for Employment Advice?
Gemma Bailey is the Head of Employment and advises both individuals and employers on all employment law, with a specialism from employment tribunal litigation. If you are affected by any of the issues discussed in this article and are seeking legal advice, contact us today to arrange an appointment with our employment experts.
This information is intended for general information purposes only and should not be used as a substitute for professional advice. Howells Legal Limited accept no responsibility for any direct or indirect result arising from any reliance placed on it, including any loss.