The claimant was employed by the first respondent company, whose president and chief executive officer was the second respondent. In an e-mail to a human resources consultant engaged by the respondents, the claimant asserted that a meeting called by the second respondent was inappropriate and was evidence of a culture of bullying and harassment in the organisation. That email was not seen by the second respondent but the HR consultant told the second respondent of the claimant’s concerns. When the first respondent made the claimant redundant, he brought claims for unfair dismissal and detriment as a result of making a protected disclosure. The employment tribunal dismissed the claims, finding, inter alia, that the claimant’s concerns were not communicated to the second respondent in sufficient detail for her to be aware that a protected disclosure had been made by the claimant. The claimant appealed contending that, with regard to the onward communication of his complaint to the second respondent, the tribunal had erred in its application of section 43B(1) of the Employment Rights Act 1996.
On the appeal—
Held, appeal dismissed. The question which arose was what level of detail of knowledge by person B was required of a protected disclosure when the actual disclosure was made to person A: was it sufficient that person B merely knew that a disclosure had been made to person A, or did person B have to know at least some of the content of the disclosure that had been made. Since no authority dealing with the point had been referred to, it was necessary to go back to first principles. The starting point for the analysis was the statutory wording. For a disclosure to be found to be a qualifying disclosure pursuant to section 43B of the Employment Rights Act 1996, all five of the following elements had to be present: (i) a disclosure of “information”; (ii) the worker had to believe that the disclosure was made in the public interest; (iii) the belief in the disclosure being in the public interest had to be reasonably held by the worker; (iv) the worker had to believe the disclosure tended to show one or more of the matters listed in section 43B(1)(a)-(f); and (v) the belief in the disclosure tending to show matters in section 43B(1)(a)-(f) had to be reasonably held by the worker. There had to be sufficient information disclosed to satisfy section 43B, which was a matter of evaluative judgment for the tribunal. Whistleblowers were intended to be protected because they had raised something of substance which Parliament had decided merited protection. For employers to be fixed with liability, therefore, they ought to have some knowledge of what the employee was complaining or expressing concerns about. That was supported by the fact that in the analogous context of the law of victimisation, where the legislation was fundamentally of the same character, the knowledge of the protected act by the victimiser was of real relevance. Accordingly, the employment tribunal did not err merely because it considered what detail of the disclosure was provided to the second respondent (paras 72, 73, 75, 76, 82–83).
Anna Greenley (instructed by Prettys Solicitors LLP, Ipswich) for the claimant.
Piers Martin (instructed by Sherrards Employment Law Solicitors, Albourne) for the respondents.