The respondent employer was one of five bodies responsible for assessing the technical documentation and quality managements systems of manufacturers of medical devices to ensure compliance with regulations and certifying that the medical devices were fit for purpose, safe and effective. The claimant was employed as a technical reviewer. She was dismissed and alleged that she had been subjected to a number of detriments. She alleged that that occurred because she had made protected disclosures within the meaning of section 43A of the Employment Rights Act 1996 (‘ERA’). The employment tribunal found that a number of the statement relied upon were not qualifying disclosures as they did not contain information tending to show one of the matters referred to in section 43B of ERA. The claimant appealed on the basis that the employment tribunal had construed the boundaries of a qualifying disclosure too narrowly.
In order for a statement to be qualifying disclosure within the meaning of section 43B ERA, ‘it has to have sufficient factual content and specificity such as is capable of tending to show one of the matters in subsection (1)’: see Kilraine v London Borough of Wandsworth [2018] ICR 1850 at paragraph 35. Further, there is no rigid distinction between an allegation and information as sometimes a statement which can be characterised as an allegation will also constitute information and amount to a qualifying disclosure: see Kilraine at paragraph 31. In the present case, the employment tribunal did not draw the boundaries of qualifying disclosures too narrowly. It was well aware that a statement making an allegation was also capable in principle of containing information amounting to a qualifying disclosure. On the facts, the employment tribunal found that the particular disclosures in issue did not contain information tending to show one of the matters in section 43B of the ERA. It was entitled to reach that conclusion on the evidence before it.
[2020] UKEAT 0244 – 19 – 2102
Bailii
England and Wales
Updated: 01 September 2021; Ref: scu.649247