Whistleblowing: the legislative changes, possible reforms and case law update Nigel Porter

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1 Whistleblowing: the legislative changes, possible reforms and case law update Nigel Porter Introduction 1. The Enterprise and Regulatory Reform Act 2013 ( ERRA ) has made significant changes to the provision of Part IV of the Employment Rights Act 1996 ( ERA ). In addition, in a number of recent decisions the EAT has had the opportunity further to consider this important legislation and in some instances has given further significant guidance on how employment tribunals should approach allegations of protected disclosures. These areas are each considered in this paper. The legislative changes: no more good faith, public interest and the demise of Parkins v Sodexho 2. As is well known, the first step in considering a whistleblowing claim is whether a qualifying disclosure has been made (ERA s 43B). If so, the next question is whether that qualifying disclosure is a protected disclosure for the purposes of ERA ss 43A and 43C-43H (which will essentially depend upon the person or persons to whom the qualifying disclosure is made). Qualifying disclosures 3. With effect from 25 June 2013 the ERRA has amended the definition of qualifying disclosure in ERA s 43B. The amendments only apply to disclosures made after that date. The new section 43B is worth setting out in full and now provides (showing the amendments in bold and deletions in brackets): 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 (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, 1

2 (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed. 4. The new section 43B thus inserts a requirement that for a disclosure to be a qualifying disclosure it must be made, inter alia, in the reasonable belief of the worker, in the public interest. 5. The insertion of the public interest requirement was in order to address the somewhat troublesome case of Parkins v Sodexho [2002] IRLR 109 at paras The wide ambit of a qualifying disclosure prior to the amendments introduced by the ERRA 2013 was vividly illustrated by that case where the EAT held that a complaint by an employee to his employer of a breach of his own contract of employment could be a qualifying (and protected) disclosure in relation to any legal obligation. It followed that a dismissal by reason of making the complaint could be automatically unfair under s 103A. The effect of the requirement that the employee reasonably believes that the disclosure is in the public interest is intended to reverse the effect of this decision. This was made clear in the explanatory notes to the ERR Bill which referred to the unintended consequence of Parkins being that any complaint about any aspect of an individual s employment contract could lay the foundation for a protected disclosure (Explanatory Notes paragraph 101). 6. Whilst this will be an important area to be further clarified in the courts it is clear that the intention of the amendment was to remove matters of essentially private dispute between employer and employee from the scope of whistleblowing protection The question is this: where, in s.43b, one of the possible qualifying disclosures is described as being the reasonable belief that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, does that term 'legal obligation' refer to legal obligations arising out of the contract of employment? We have had the opportunity of seeing the notes prepared by the editors of the Encyclopaedia of Labour Relations Law on this matter, in which they state: 'This includes a breach of any statutory requirement; contractual obligation; common law obligation for example negligence, nuisance, defamation or an administrative law requirement.' 15 It is obviously not sufficient under s.43b that there should simply be a breach of contract, but what has to be shown is first a breach of the employment contract as being a breach of a legal obligation under that contract. Secondly, there must be a reasonable belief that this has, is, or is likely to happen on the part of the worker. Thirdly, there must be a disclosure of that which is alleged to be the reason for dismissal. In other words, where it is a breach of the contract of employment, the worker is bound to make his case on the basis that the reason for dismissal is that he has complained that his employer has broken the contract of employment. 2 It is to exclude the opportunistic use of the legislation for private purposes (HC committee stage column 388, 3 July 2012). 2

3 7. So far so good, but a word of caution must be sounded in relation to this amendment in the context of an employee asserting a breach of his contract of employment. It does not follow that all such disclosures will fail at the threshold test of public interest. 8. First, there may be instances when an assertion of a breach of a contract of employment may nevertheless be in the public interest and will not be limited to raising a matter of private dispute. A possible example is where the alleged breach of contract raises a matter of general importance or overlaps with another category of qualifying disclosure, for example health and safety. This appears to have been recognised in the Parliamentary debates on the amendment which referred to instances where a worker should be able to rely on breaches of his own contract where those engage wider public interest issues. 3 Consider, for example, issues, say, of working hours worked by junior doctors in the NHS which could be a breach of a contractual provision but could also raise issues of health and safety if this leads to a risk to patients. Further, the same issue could, perhaps, be raised as falling under another qualifying ground of qualifying disclosure, e.g. endangering health and safety. Indeed, even on the facts of Parkins it should be remembered that the matter of which the worker complained was a lack of adequate on-site supervision which, he maintained, gave rise to a breach of contract and therefore involved a protected disclosure within the meaning of s.43b(1)(b). As was observed in the Parliamentary debates on the ERR Bill, the actual issue raised in Parkins could have been reframed as a health and safety one. 9. Second, it is relevant to note that the disclosure made is not required to be shown to be actually in the public interest. Rather the test is whether, in the reasonable belief of the worker, the disclosure is made in the public interest and tends to show one of the six matters listed in ERA s 43B(1)(a)-(f). Reasonable belief in the context of qualifying disclosures was explained in Babula v Waltham Forest College [2007] IRLR 346 where the Court of Appeal held that the requirements under s 43B are (i) that the employee believes that the information disclosed meets the requirements of the section, (ii) that the employee's belief is objectively reasonable and (iii) that the disclosure is made in good faith. Whilst the good faith requirement in relation to any category of protected disclosure has been removed with effect from 25 June 2013 by the provisions of s 18 of the ERRA 2013, the guidance on reasonable belief remains good law and will also, it is submitted, apply to the issue of reasonable belief in the public interest. See Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4 where the EAT gave further guidance on reasonable belief. Although the test is objective this has to be considered taking into account the personal circumstances of the discloser. 10. It follows that, so long as the worker genuinely believes that the disclosure is made in the public interest, then the requirement will be satisfied unless that belief is found to be objectively unreasonable. Given the subject matter of the disclosures under ERA s 43B(a) and (c)-(f) it might be a rare case where a genuine belief that it is in the public interest to disclose wrongdoing would be considered to be objectively unreasonable in such cases. It is likely that the focus will remain upon the category of breach of a legal obligation under ERA s 43B(b). 3 See the House of Commons Committee Stage (Hansard Column 388 on 3 July 2012). 3

4 11. Despite the evident legislative intent of the introduction of the public interest requirement to deal with Parkins it is important to note that the requirement of reasonable belief in the public interest applies to each of the six categories of qualifying disclosure. At first it may appear that the requirement is likely to add little to the existing law (e.g. surely a genuine belief in a miscarriage of justice genuinely believed to be disclosed in the public interest is likely to satisfy the test of objective reasonableness?). There may, however, be issues of the seriousness of the wrongdoing in question when analysing the public interest requirement. For example, a serious danger to public health is surely in the public interest but what if the risk is of relatively minor harm? Whilst this will be a matter for the courts to address as new case law develops there is at least a suggestion in the Parliamentary debates that consideration of the seriousness of the harm or wrongdoing may be relevant to the public interest issue. 12. As set out above, in the Parliamentary debate the Minister referred to the possibility that the issues raised in Parkins could have been presented as a health and safety disclosure (ERA s 43B(1)(d)) but went on to say... similar issues then aris[e] in relation to disclosures of minor breaches of health and safety legislation, which are of no interest to the wider public. This is an interesting point. Will certain matters otherwise qualifying for protection be excluded as not in the public interest based upon the triviality of the harm or wrong in issue? This will be an important area for the courts to determine as case law develops but it perhaps sits somewhat uncomfortably with the general purpose of the legislation, namely to protect workers being victimised for raising, through appropriate channels, genuine concerns. If the worker genuinely believes that the wrong in question has been or is likely to be committed, should the protection be removed on an analysis of the likely seriousness of the harm which did or would be likely to result? Removal of good faith 13. For a qualifying disclosure to be a protected disclosure the disclosure had to be made to an appropriate person and in good faith. It is no longer a requirement of a protected disclosure that it be made in good faith (but see below) and the requirement has been removed from each of ERA s 43C-43H. See for example the most commonly used section 43C (the deletion is shown in italics in brackets): 43C Disclosure to employer or other responsible person (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure [in good faith] (a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, 4

5 to that other person. (2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer. 14. The removal of the good faith requirement was consequential upon the addition of the public interest requirement. It was considered that to have both requirements as qualifying conditions for a disclosure to be protected would essentially be a doubled requirement of satisfying the public interest test. The remaining relevance of good faith is at the remedies stage considered below. 15. The categories of persons to whom protected disclosures can be made under ERA s 43C-43H are not altered by the amendments made by the ERRA. Definition of worker 16. Section 43K of the ERA defines the workers qualifying for protection under Part IV of the ERA. The ERRA has made certain minor changes to this section to bring within the scope of protection certain NHS workers who were excluded from the previous definition. 17. As to partners, e.g. members of an LLP, the Court of Appeal had held in Bates van Wilkelhof v Clyde & Co LLP [2012] IRLR 992 (CA) that such persons were not workers for the purposes of ERA s 43K. The Supreme Court has heard argument on the appeal on this issue in March 2014 and judgment is awaited. The amendments to the definition of worker in s 43K introduced by the ERRA do not address the situation of partners and so this issue will be determined by the decision of the Supreme Court. Compensation: the residual role of good faith 18. Whilst good faith is no longer a definitional requirement of a protected disclosure (and thus a protected disclosure made other than in good faith will still qualify for protection) an absence of good faith is relevant at the stage of assessing compensation for (i) detriment suffered by reason of having made a protected disclosure and (ii) compensation for automatically unfair dismissal by reason of having made a protected disclosure (ERA s 103A). 19. It had previously been held that a disclosure is not made in good faith if an ulterior motive is the predominant purpose for making the disclosure, even if the worker making the disclosure reasonably believed it was true. See Street v Derbyshire Unemployed Workers' Centre [2004] EWCA Civ 964, [2004] IRLR 687 (CA). From the headnote: In the context of s.43c and s.43g, "in good faith" means more than a reasonable belief in the truth of the information disclosed. A disclosure will not be made in good faith if an ulterior motive was the dominant or predominant purpose of making it. Where a statement is made without reasonable belief in its truth, that fact would be highly relevant as to whether it was made in good faith. But where a statement is made in that belief, it does not necessarily follow that it is made in good faith. 5

6 In the present case, the employment tribunal had plainly concluded that none of the disclosures made by the applicant could be regarded as made in good faith because her dominant, if not her sole, motive in making them was her personal antagonism towards her manager. The EAT was right not to interfere with that finding, taking the view that the purpose of the Public Interest Disclosure Act is not to allow people to advance personal grudges, but to protect those who make certain disclosures of information in the public interest. (emphasis added). 20. There is no reason to suppose that this reasoning will not remain relevant in the enquiry into good faith in assessing compensation. 21. As set out above, the absence of good faith does not prevent a qualifying disclosure being a protected disclosure. The issue of whether the protected disclosure was made in good faith remains relevant, however, at the stage of remedy. In assessing compensation for detriment the tribunal may reduce any award by up to 25% if it was not made in good faith and the tribunal considers it just and equitable to do so (ERA 1996 s 49(6A) as added by the ERRA 2013 s 18(4) from 25 June 2013). Thus the issue of good faith and the decided cases in relation to the concept remain relevant in such cases where absence of good faith is in issue. 22. By ERA s 123(6A), in the event of an unfair dismissal where the reason or principal reason for the dismissal was a protected disclosure but one that was not made in good faith, then the compensatory award may be reduced by up to 25% if the tribunal considers it just and equitable to do so (as added by s 18(5) of the ERRA 2013 from 25 June 2013). There is no similar provision applying to a basic award for unfair dismissal. 23. The concept of such deductions from compensation will be familiar from, e.g. s 207A of TULRCA 1992 (in cases of non compliance with disciplinary and/or grievance procedures) but one point remains to be clarified. ERA s 49(6A) provides as follows: (6A) (a) (b) faith, Where the complaint is made under section 48(1A), and it appears to the tribunal that the protected disclosure was not made in good the tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce any award it makes to the worker by no more than 25%. (emphasis added) 24. When good faith was a qualifying requirement for a disclosure being a protected disclosure it had been held that the burden of proof in relation to the absence of good faith rested on the employer (Bachnak v Emerging Markets Partnership (Europe) Ltd (0288/05) (2006) 150 Sol Jo LB 435, EAT but compare Street v Derbyshire Unemployed Workers' Centre [2004] EWCA Civ 964, [2004] IRLR 687 (CA) at paragraph 6 Thus, in s.43c, all that a worker who makes a disclosure to his employer or to another responsible person, or under s.43e - disclosure to a Minister of the Crown - has to do to qualify to for automatic protection is to show that his disclosure was made 'in good faith'.... which appears to suggest the burden was on the Claimant). What of the 6

7 burden of proof under ERA s 49(6A) (and ERA s 123(6A) in cases of unfair dismissal compensation where the language used is the same)? It is submitted that the language of it appears to the tribunal is apt to apply in any case where the tribunal is satisfied on the evidence that the disclosure was not made in good faith and accordingly a formal burden of proof does not rest upon the employer or the employee on this issue but the contrary is, of course, arguable. We must await judicial clarification on the issue. Liability for employees and agents 25. The amendments introduced by the ERRA also address a lacuna in the protection against detriment afforded by Part IVA of the ERA. 26. In NHS Manchester v Fecitt [2012] IRLR 64 the Court of Appeal had held, applying Majrowski v Guy's and St Thomas' NHS Trust [2007] 1 AC 224, that the employer cannot be vicariously liable for the acts of employees which are not themselves unlawful. Thus acts of victimisation on grounds of having made a protected disclosure were not in themselves unlawful and there was, accordingly, no basis for vicarious liability. The decision of the EAT in Carlisle-Morgan v Cumbria County Council [2007] IRLR 314, [2007] All ER (D) 248 (Jan) (EAT) to the contrary was considered to be wrongly decided. 27. This lacuna in the statutory protection against detriment has been addressed by amendments introduced by the ERRA 2013 with effect from 25 June Section 47B of the ERA 1996, which provides the protection against detriment on grounds of having made a protected disclosure, has new subsections (1A)-(1E) added by s 19(1) of the ERRA These subsections extend protection against detriment by reason of having made a protected disclosure to detriments imposed by other workers in the course of that worker s employment or by agents of the employer acting with the employer s authority (ERA s 47B(1A)). The new subsections are as follows: (1A) A worker ('W') has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done (a) by another worker of W's employer in the course of that other worker's employment, or (b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. (1D) In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker 7

8 (a) (b) from doing that thing, or from doing anything of that description. (1E) A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if (a) the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and (b) it is reasonable for the worker or agent to rely on the statement. But this does not prevent the employer from being liable by reason of subsection (1B). 28. These provisions are similar in wording to those found in relation to liability of employees and agents in the Equality Act 2010 and provide for a statutory defence for the employer to show that the employer took all reasonable steps to prevent the detriment (ERA s 47B(1D)). By ERA s 47B(1E) a worker or agent is not liable for doing something which subjects the disclosing worker to a detriment if the worker or agent does that thing in reliance on a statement by the employer that doing that thing does not contravene the Act and it is reasonable for the worker or agent to rely on that statement. If that defence is made out it does not prevent liability of the employer arising under ERA s 47B(1B) (ERA s 47B(1E)). 29. Despite the similarity in wording of these provisions to those contained in the Equality Act 2010 (see ss 109 and 110) it remains to be seen whether the case law widely interpreting course of employment in the discrimination field will be applied in this context (see e.g. Bracebridge Engineering Ltd v Darby [1990] IRLR 3, EAT; Jones v Tower Boot Co Ltd [1997] IRLR 168, [1997] ICR 254, CA; Chief Constable of the Lincolnshire Police v Stubbs [1999] IRLR 81, [1999] ICR 547, EAT; Waters v Metropolitan Police Comr [1997] IRLR 589, [1997] ICR 1073, CA). 30. There is certainly authority to suggest that concepts applicable in the discrimination case law should not be read over into the construction of the protections against detriment in the ERA and in particular in relation to the protections afforded to those making protected disclosures. See for example NHS Manchester v Fecitt [2012] IRLR 64, CA where it was held that, for the purposes of construing ERA s 47(1) ( on the ground that... ) 4 and ERA s 48(2) ( it is for the employer to show ), 5 it was not appropriate to import the more stringent test applicable in discrimination law ( in no sense whatsoever due to ) into the construction of the statutory provisions of the ERA which were to be interpreted on their own language. It was thus held that, in relation to any alleged detriment short of dismissal, liability will only arise if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower (NHS Manchester v Fecitt [2011] EWCA Civ 1190 at para 45 per Elias 4 47 (1) 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. 5 48(2) On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done. 8

9 LJ) which differs from the test that would be applied in discrimination law. Thus it remains debatable as to whether the concept of course of employment should be interpreted in the same way as in discrimination cases. 31. The same point arises in relation to the statutory defence of taking all reasonable steps (ERA s 47B(1D)) to prevent the wrongdoing. Whilst the language of the provision mirrors that of ss 109(4) of the Equality Act 2010 (on which see e.g. Croft v Royal Mail Group plc [2003] EWCA Civ 1045, [2003] IRLR 592, [2003] ICR 1425), the same point as to whether discrimination law should be read across will arise. Further reform? 32. In July 2013 the government published Call for Evidence: the Whistleblowing Framework. 6 The purpose of that document was explained as follows: We now want to explore further whether there are any other aspects of the law governing whistleblowing which may not be protecting whistleblowers or encouraging them to come forward about wrongdoing. So we are calling for evidence to help us look more closely at the existing protections and consider if further changes are required in light of that evidence. The document made clear that it was not, however, seeking evidence or opinion on the changes introduced by the ERRA (considered above) as it is too early to evaluate their impact. 33. The Government sought views on a number of matters, the key ones being: a. whether there needs to be further categories of disclosure which qualify for protection in order to capture all disclosures that are "in the public interest"; b. whether the requirements for making a protected disclosure affect or deter a whistleblower from making a disclosure; c. whether the definition of "worker" for the purposes of whistleblowing protection should be further extended; d. whether financial incentives should be introduced to encourage whistleblowing in the financial sector (reflective of those which apply in, e.g. the USA); e. the introduction of a non-statutory code of practice which would provide employers with best practice guidance for handling whistleblowing in their organisation and their whistleblowing policies. 34. To date, unfortunately, no proposals for further reform have been published by the government although the Call for Evidence has now closed. Indications that the government would respond before Easter 2014 have proved optimistic. There have been, however, some fairly high profile calls for reform of the whistleblowing legislation from, e.g. the Employment Lawyers Association (ELA) and the charity Public Concern at Work which has produced a detailed report containing some 25 recommendations and a draft Code of Practice as a response to the Call for Evidence. The Report can be found at

10 35. The key recommendations of the Public Concern at Work report are as follows: a. The Secretary of State to adopt the Commission s Code of Practice detailing whistleblowing arrangements in the workplace. This Code of Practice to be taken into account by courts and tribunals when whistleblowing issues arise. (Rec 1) b. Regulators to require or encourage the adoption of this Code of Practice by those they regulate. (Rec 2) c. Regulators should review the licence or registration of organisations which fail to have in place effective whistleblowing arrangements. (Rec 3) d. Regulators to be more transparent about their own whistleblowing arrangements and annually report on their operations. (Rec 5) e. Specific provisions against the blacklisting of whistleblowers. (Rec 10) f. Strengthening anti-gagging provisions in the law. (Recs 17 & 18) g. Specialist training for tribunal members to handle whistleblowing claims effectively. (Rec 21) h. Strengthening and clarifying the legal protection for whistleblowers contained within the Public Interest Disclosure Act. (Recs 8-20) i. Updating and broadening the definition of worker to include: student nurses, doctors, social workers and health care workers; volunteers and interns; priests; foster carers; non-executive directors; public appointments; LLP members and all categories of workers listed under the Equality Act (Rec 10) 36. ELA s observations and recommendations are broadly similar and include: a. the conclusion that the statutory conditions attached to making protected disclosures are complex and may deter whistleblowers from exposing wrong doing; b. case law developments pose difficulties for potential whistleblowers: for example, gathering enough evidence to establish a reasonable belief that their employer had broken the law; c. that the different tests for detriment (material influence) and reason for dismissal (reason or principal reason) should be the same in each case; d. the statutory ban on financial incentives should be repealed and that this should be considered as part of the overall reasonableness of the disclosure; e. review of the list of prescribed persons; f. support for a voluntary or statutory code of practice; g. extension to workers not covered currently by the statutory provisions, such as solicitors who are partners of limited liability partnerships, and job applicants who are blacklisted as a result of past whistleblowing activities. 37. Whilst the formal government response is awaited, all that can be done is speculate on an informed basis, based upon limited indications that the government has given to date, 10

11 as to possible areas for further reform. It at least appears likely that consideration will be given to a (voluntary?) Code of Practice, whether or not in the draft form proposed by the charity Public Concern At Work. 38. Other possibilities clearly include the further extension of the definition of workers (or those otherwise to be afforded protection under the legislation). Possible candidates include non-executive company directors and those occupying public appointments. The government has seemed to recognise that some additional protection may be required referring to the need to strike the right balance to include those where there is clear detriment suffered. A further possibility is, of course, those who are members of an LLP although it is possible that the government will leave resolution of this issue to the Supreme Court. Another possible indication of an area for reform is the government s indication that blacklisting of whistleblowers is unacceptable. 39. Another area of likely although not immediate reform is in relation to the list of prescribed persons for the purpose of the legislation. The recent cases Overview 40. By way of brief overview the significant recent cases illustrate a continuing trend at appellate level requiring precision in the analysis of what is alleged to be a protected disclosure and a stringent analysis to be conducted by employment tribunals as to whether such disclosures truly qualify for protection under the strict terms of the ERA. 41. As a general observation, it would seem that for those facing claims involving protected disclosures a rigorous and painstaking approach to seeking full and precise particularisation of each of the alleged qualifying disclosures and thereafter the basis upon which it is contended any such qualifying disclosures are protected will be appropriate and will not be considered to be oppressive or unnecessary. Indeed it is, in my view, necessary in the light of the recent judicial guidance to carefully identify the alleged protected disclosures in detail. The earlier this can be done and the issues settled the better. For those pleading protected disclosure claims it appears that a high degree of precision will be required in precisely identifying the disclosures in issue, the dates thereof and the basis in law to contend that they are qualifying and protected. 42. Moreover, the pleading of a multitude of alleged protected disclosures is potentially a practice which is not without problems, as recent case law has illustrated. 43. As well as the need for rigour in identifying the disclosures there are also signs of further expansion of the temporal periods that can benefit from protection against detriment on the grounds of having made a protected disclosure. It should not be assumed that once the employment relationship has terminated the provision cannot still apply. 44. These points are considered below. Information and allegations post Geduld 45. As was made clear by Cavendish Munro Professional Risk Management Ltd v Geduld [2010] ICR 325 at paragraphs 20-29, Goode v Marks and Spencer plc Appeal 11

12 No. UKEAT/0442/09/DM at paragraphs and Smith v London Metropolitan University [2011] IRLR 884, EAT at paragraphs 88-89, the alleged protected disclosures must be carefully analysed to determine if they meet the statutory definition of a qualifying disclosure of information as opposed to the making of an allegation to the employer. The distinction is well illustrated by an example given in Mrs Justice Slade s judgment in Geduld in relation to the state of a hospital. To say health and safety requirements are not being complied with is an unprotected allegation. To say the wards of the hospital have not been cleaned for two weeks and sharps were left lying around is conveying information and is protected. 46. In Millbank Financial Services Ltd v Crawford [2014] IRLR 18 the principles outlined in Geduld were further considered in the factual context of complaints alleging omissions to act. The claimant (a trainee accountant whose probationary period was extended) wrote a complaint letter raising issues of lack of feedback, absence of consultation on extension, lack of consultation with a director and absence of information on the duration of the extension. Shortly after sending the letter she was dismissed. The issue was whether the letter contained a qualifying disclosure(s) or was merely making allegations. The EAT held that the letter went beyond mere allegations and set out the factual base of the complaints in detail. Conveying facts for the purposes of the whistleblowing provisions plainly included conveying facts about what had not been done as well as about what had been done. It should be noted that this case is an example of a pure Parkins v Sodexho private complaint and would accordingly (had the alleged disclosure been made after 25 June 2013) be likely to have failed on the public interest ground. Multiple alleged protected disclosures 47. Norbrook Laboratories (GB) Ltd v Shaw (UKEAT/0150/13) considers whether a series of complaints could be taken together in order to satisfy the test of a disclosure of information in the analysis of whether a qualifying disclosure had been made out in the sense understood in Geduld. In the case the claimant managed travelling staff who reported to him serious dangers in winter driving. The question was posed whether they were required to drive and whether they would be paid if unable to do so. The claimant sent three s to his managers (including a health and safety manager). The first enquired as to the company policy on the issue and the second and third actually complained about the conditions and the dangers arising. The EAT (Slade J) held that this amounted to more than a complaint or opinion and satisfied the Geduld test. One issue that arose was the fact that the first alone would not have satisfied the test. Applying Goode v Marks and Spencer plc the EAT held that a series of complaints can be aggregated to form one protected disclosure as an initial communication can be embedded in later ones. The case is also noteworthy for the analysis of qualifying disclosures under ERA s 43B(1)(d) (health and safety cases). It is sufficient if there is the fact or likelihood of the health and safety of an individual being endangered. This does not require, in addition, a breach or likely breach of a health and safety obligation cast on the employer. That situation would come under ERA s 43B(1)(b) but was not necessary for a qualifying disclosure to be made out under s 43B(1)(d). 12

13 48. Whilst a series of complaints can thus be aggregated to create a single qualifying/protected disclosure where a claimant is relying upon multiple alleged protected disclosures, reasonable belief must be made out in relation to each of the disclosures. A general belief in the gist of the content of the disclosures is not enough (see Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4 at paragraphs and the guidance in Blackbay Ventures Ltd v Gahir (UKEAT/0449/12) (below)). Detriment 49. In relation to any alleged detriment short of dismissal, liability will only arise if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower (NHS Manchester v Fecitt [2011] EWCA Civ 1190 at para 45 per Elias LJ). 50. Consideration of the meaning of subjection to a detriment has been given by the EAT in Abertawe Bro Mogannwg University Health Board v Ferguson [2014] IRLR 14. The case concerned a doctor who raised concerns about a partner of hers in general practice. She contended that her employer (the local health board) had failed to investigate her complaints, breached confidence and failed to prevent her being victimised by colleagues. The Health Board submitted that, as to the meaning of subjected to, Parliament had not adopted the word caused and that the reason was that, whereas caused was a general phrase, subjected to was specific, connoting a wilfulness in the doer and an element of the doer's capacity to control events and to bestow upon the person subject to them the consequences of the act or omission. It followed that, for the claim to have been successful, the Claimant had to show that the Health Board could have controlled what had happened to her. The Health Board argued that it had not had control over the partnership itself and so could not have subjected the doctor to any detriment arising out of the failure of the partnership. The Health Board also submitted that a deliberate failure to act presupposed that there was some obligation to act. 51. Rejecting those submissions the EAT held the word subjected in s.47b(1) has the force of causation and was adopted as it was suitable to a context where it had to cover both positive acts and omissions to act. It does not carry any connotation of wilfulness, not least because the statute provides specifically that any act which is done by the employer has to be done for a particular reason that is, that the worker has made a protected disclosure. A failure to act for its part has to be deliberate. Wilfulness is therefore successfully accommodated by the rest of the subsection; it does not need any further and separate reflection in the word subjected. Subjected to is passive. 52. A deliberate failure to act must be seen in context. In the present case, the context was that of the relationship between a doctor and a Health Board. That had two parts the first was contractual and the second depended upon the statutory provisions under which the Health Board operated. The expression did not necessarily extend so far as to cover a failure to fulfil an expectation that the Board would have acted in a particular way. It would have done so only if the Board had possessed the ability or power so to have acted. On that basis it would have had a choice as to how it had behaved. If it had 13

14 chosen to exercise that choice by not taking action when it otherwise could have done so legitimately, then that would have been capable of having been a deliberate failure to act. If it were to have been established as a deliberate failure which, applying the words of the section, had subjected the doctor to any detriment, then she would have succeeded in a claim if it were also to have been shown that the Board had deliberately decided not to act as it did on the ground that she had made a protected disclosure. 53. It should be noted that this case involved, in part, the issue of the conduct of other workers. Claims in relation to subjection to a detriment by reason of making a protected disclosure will be simplified by the reforms enacted in the ERRA 2013 which provides, for claims arising after 25 June 2013, for vicarious liability in the employer for acts of detriment done by its workers or agents (as discussed above). The duty of the tribunal to identify the protected disclosures 54. Helpful and detailed guidance on the approach to be taken by a tribunal in determining whether protected disclosures have been made is provided by Blackbay Ventures Ltd v Gahir (UKEAT/0449/12). It is to be noted that the case also considers the changes made by the EERA 2013 and is thus particularly significant. 55. The eight step guidance, which is set out at para 98 of the Judgment, is as follows: 98 It may be helpful if we suggest the approach that should be taken by Employment Tribunals considering claims by employees for victimisation for having made protected disclosures. 1) Each disclosure should be identified by reference to date and content 2) The alleged failure or likely failure to comply with a legal obligation, or matter giving rise to the health and safety of an individual having been or likely to be endangered or as the case may be should be identified. 3) The basis upon which the disclosure is said to be protected and qualifying should be addressed. 4) Each failure or likely failure should be separately identified. 5) Save in obvious cases if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation. It is not sufficient as here for the Employment Tribunal to simply lump together a number of complaints, some of which may be culpable, but others of which may simply have been references to a check list of legal requirements or do not amount to disclosure of information tending to show breaches of legal obligations. Unless the Employment Tribunal undertakes this exercise it is impossible to know which failures or likely failures were regarded as culpable and which attracted the act or omission said to be the detriment suffered. If the Employment Tribunal adopts a rolled up approach it may not be possible to identify the date when the act or deliberate failure to act occurred as logically that date could not be earlier than the latest of act or deliberate failure to act relied upon and it will not be possible for the Appeal Tribunal to understand whether, how or why the detriment suffered was as a result of any particular disclosure; it is of course proper for an Employment Tribunal to have regard to the 14

15 cumulative effect of a no of complaints providing always have been identified as protected disclosures. 6) The Employment Tribunal should then determine whether or not the Claimant had the reasonable belief referred to in S43 B1 and under the 'old law' whether each disclosure was made in good faith; and under the 'new' law whether it was made in the public interest. 7) Where it is alleged that the Claimant has suffered a detriment, short of dismissal it is necessary to identify the detriment in question and where relevant the date of the act or deliberate failure to act relied upon by the Claimant. This is particularly important in the case of deliberate failures to act because unless the date of a deliberate failure to act can be ascertained by direct evidence the failure of the Respondent to act is deemed to take place when the period expired within which he might reasonably have been expected to do the failed act. 8) The Employment Tribunal under the 'old law' should then determine whether or not the Claimant acted in good faith and under the 'new' law whether the disclosure was made in the public interest. Post employment disclosures 56. In Woodward v Abbey National plc [2006] EWCA Civ 822, [2006] 4 All ER 1209, [2006] ICR 1436) the Court of Appeal decided that the principles outlined in Relaxion Group plc v Rhys-Harper [2003] UKHL 33, [2003] 4 All ER 1113 in relation to acts of victimisation occurring after the termination of the employment contract applied to detriments suffered after the termination of the employment relationship, for example, an unfavourable reference provided by reason of having made a protected disclosure. 57. In Woodward, whilst the detriment occurred after the termination of the employment, the protected disclosure was made during the currency of the employment relationship. What, then, is the position in relation to a qualifying disclosure made after the termination of the employment? 58. In Onyango v Adrian Berkeley t/a Berkeley Solicitors [2013] IRLR 338, the issue was whether the protection against detriment could apply to the situation where the protected disclosure relied upon for the purposes of s 43B ERA occurred after the termination of the employment. The EAT, applying Woodward, concluded that, as a post termination detriment was actionable, there was no reason to exclude the situation where the protected disclosure relied upon also occurred post termination. This clearly has relevance to terms included in settlement agreements which purport to limit the right of an employee or worker to make disclosures after termination of employment and seek to claw back compensation in the case of any breach. Section 43J of the ERA, of course, renders void any provision in an agreement which purports to preclude the worker from making a protected disclosure. Now that it is clear that post-employment disclosures can be protected disclosures, s 43J will apply to such terms, rendering them void. Nigel Porter May