VICTIMISATION DISCRIMINATION – Whistleblowing
In a whistleblowing claim the issue was whether the Tribunal had correctly interpreted and applied section 43B(1)(b) Employment Rights Act 1996 in two respects; (1) what amounts to an allegation of a breach of a legal obligation and (2) the public interest element in light of the guidance from the Court of Appeal in Chesterton Global Limited (T/A Chestertons) v Nurmohamed [2017] EWCA Civ 979.
The Tribunal erred in concluding that a complaint by an employee that others are falsely blaming him for breaches of confidentiality, of such seriousness that he has to ‘clear his name’, is not a complaint that those others have failed to comply with a legal obligation to which they are subject in accordance with section 43B(1)(b). The provision is broad enough to include tortious duties, including defamation and breach of statutory duty such as those contained in the Defamation Act 2013. It is immaterial that he did not use the legal terminology of defamation when making his disclosure.
However, the Tribunal did not err in its analysis that the disclosure did not meet the public interest test. The Tribunal has to ask itself (a) whether the worker believed at the time that he was making it that the disclosure was in the public interest and (b) if so, whether that belief was reasonable. The Tribunal found that the Claimant did not have a subjective belief in the public interest element of his disclosure – his concern was only that false rumours had been made about him, and the effect of those rumours on him. Those facts were the Tribunal’s to make and open to it on the evidence before them. Since the Claimant did not have a subjective belief in the public interest of his disclosure, the Tribunal’s enquiry ended there and there was no error in the conclusion that the Claimant had not made a protected disclosure.
Chesterton Global Limited (T/A Chestertons) v Nurmohamed [2017] EWCA Civ 979 followed and applied.
Citations:
[2018] UKEAT 0105 – 18 – 1309
Links:
Jurisdiction:
England and Wales
Employment
Updated: 30 March 2022; Ref: scu.633783
