When considering whether a claimant has satisfied the statutory requirements for making a protected disclosure (blowing the whistle), the Employment Appeal Tribunal (EAT) has held in Kealy v Westfield Community Development Association that tribunals must follow the “waymarks” set out in the legislation.
Basic facts
Ms Kealy worked as an Early Years Co-ordinator for the Westfield Community Development Association, a charity operating a large community centre providing educational services and a nursery.
She claimed to have made a number of protected disclosures (blown the whistle) relating (1) to funds which she said had not been spent and (2) a breakdown in the heating at the nursery which she believed was potentially a health and safety matter. She made some of the disclosures to her employer and some to external bodies, including Ofsted.
She then resigned and lodged a number of tribunal claims, including one for protected disclosure detriment (disadvantage) and dismissal under section 43 of the Employment Rights Act (ERA) 1996. The tribunal dismissed her claims and Ms Kealy appealed.
Relevant law
Section 43A states that a “protected disclosure” is a qualifying disclosure which is made by a worker to their employer, or any other prescribed person as set out in sections 43C to 43G.
Section 43B states that a “qualifying” disclosure means any disclosure of information which, in the reasonable belief of the worker, is made in the public interest and tends to show one of the items listed in paragraphs a to f. For instance, that a criminal offence has been committed; that someone has failed to comply with a legal obligation; that someone’s health and safety has been endangered; and/or that the environment has been damaged.
Section 43G states that if the worker does not make the disclosure to their employer because they might be penalised in some way, they must reasonably believe that the information disclosed, and any allegation contained in it, are substantially true; that the disclosure is not made for personal gain; and it was reasonable, in the circumstances, to make the disclosure.
EAT decision
Allowing the appeal, the EAT criticised the tribunal for failing to follow the “waymarks” (in other words, the signposts) provided by the statute. As such, it failed firstly to consider whether the disclosures were “qualifying” disclosures under section 43B by asking the following questions:
- Is there a disclosure of information?
- Does the worker believe that they made the disclosure in the public interest?
- If the worker holds that belief, is it reasonably held?
- Does the worker believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs a to f?
- If the worker holds that belief, is it reasonably held?
Once it had established that Ms Kealy had made a qualifying disclosure, the tribunal should then have considered whether it was “protected”. In other words, it should have considered whether the disclosures made to someone other than the employer satisfied the additional requirements laid down under section 43G. Although this section demands a higher standard of belief, it still does not have to be objectively true but rather that the worker reasonably believed it to be true.
The tribunal had, on the other hand, conflated elements of the tests for whether there were qualifying disclosures provided for under section 43B ERA with those that determine whether any qualifying disclosures were protected by operation of section 43C (disclosure to the employer) or G (disclosure in other cases). The findings of the employment tribunal were, therefore, unsafe and the EAT remitted all Ms Kealy’s claims for rehearing by a differently constituted tribunal.
