Monday 25th September 2023
PUBLISHED ARTICLES
Article 19
New Case Shows Importance of 'Reasonable Belief' in Whistleblowing Cases
In the recent EAT case of, Goode v Marks & Spencer Appeal No. UKEAT/0442/09/DM,
the fact that protected disclosures have to be subject of a 'reasonable belief'
was explored.
As we know the protected disclosures fall under:
Section 43B(1),ERA (a-f)
In order to be afforded protection under PIDA the disclosure must relate
to one of six categories of subject matter:
That a criminal offence has occurred or is likely to occur
A person has failed or is likely to fail to comply with a legal obligation;
A miscarriage of justice has occurred or is likely to occur;
The health and safety of an individual has been or is likely to be endangered;
Environmental Damage;
Or information tending to show one of the above has been or is likely to
be deliberately concealed.
The leading case in this area is that of Babula v Waltham Forest College.
Court of Appeal, 2007 EWCA Civ 174. Lord Justice Wall, giving the judgment
said that, In each of the instances identified in S.43B(1)(a)-(f), the whistleblower
has to establish a reasonable belief that the information being disclosed
‘tends to show’ one or more of the situations in (a)-(f). However,
nothing in that section requires a whistleblower to be right. Provided his
or her belief is held by the tribunal to be objectively reasonable, neither
the fact that the belief turns out to be wrong nor the fact that the information
which the claimant believed to be true does not in law show, for example,
that a criminal offence is likely to be committed or that a person is likely
to be in breach of a legal obligation, is sufficient of itself to render the
belief unreasonable and thus deprive the whistleblower of the protection afforded
by the statute.
The recently reported case of, Goode V Marks And Spencer, the Appellant's
expression of an opinion about an employer's proposal, after consultation,
to change a discretionary enhanced redundancy scheme does not amount to a
qualifying or protected disclosure. The EAT supported the ET who could not
see that the Claimant could have a reasonable belief looking at the facts
that he had been dismissed because of a 'sham' redundancy scheme.
The Appellant had taken a number of steps, including complaining to his
line manager, contacting the Times and completing a survey, which he sought
to argue were protected disclosures - all in relation to the detail of a proposed
redundancy scheme - which should entitle him to the protection of section
103A ERA and render his subsequent dismissal automatically unfair. Such information
as the Appellant sought to rely on to establish that protected disclosures
had been made was not enough to be the subject of a reasonable belief that
it tended to show that the Respondent was likely to fail to comply with any
legal obligation to which it was subject. The appeal was dismissed.
The case is a reminder that when defending against whistleblowing cases
it is often worth arguing why the protected disclosure could not possibly
be based on a reasonable belief...of course whether the disclosure is made
in 'good faith' or not is an entirely different but essential chapter.
Charles Price is a barrister at no5 Chambers
www.charlesprice.net
