The Claimant was employed by the Respondent, a Member of the Welsh Assembly. He was suspended and later dismissed by her on the given ground of conduct. He claimed that the suspension amounted to detrimental treatment on the grounds that he had made a protected disclosure, and that he was dismissed for the reason or principal reason that he had done so.
The claimed disclosure was contained in a letter. It referred to the fact the Respondent’s brother had not been recommended for permanent appointment to a position in her office, following interview by a panel on which the Claimant had sat. It stated that her brother did not make the grade despite her having tried to manipulate the recruitment process. The Claimant’s case, among other things, was that this was a disclosure containing information which he reasonably believed tended to show that she had committed a criminal offence, in particular under the Fraud Act 2006, section 4.
The Tribunal found that the claimed disclosure did not contain sufficient specific factual information to be reasonably capable of being regarded as tending to show that a criminal offence had been committed. It was therefore not a qualifying or protected disclosure and the claims were dismissed.
The Claimant’s appeal against that decision failed. The Tribunal had correctly applied the guidance in Kilraine v London Borough of Wandsworth [2018] ICR 1850, as further recently elucidated in Simpson v Cantor Fitzgerald Europe UKEAT/0016/18/DA. It had properly found that the disclosure did not meet the threshold test of containing sufficient specific information so as to tend to show that there had been a criminal offence. The Tribunal was entitled to take a view that the assertion that the Respondent had tried to manipulate the process did not necessarily or obviously connote criminality, in particular by way of some dishonest conduct. In any event the threshold test was properly viewed as not passed, because the disclosure did not state what, specifically, the Respondent was said to have done, in fact, that amounted, in the Claimant’s view, to an attempt to manipulate the process. Without some such additional factual content, the information that the Respondent held public office, that the candidate was her brother, that there were special rules about the recruitment of family members, and that the brother would gain financially by being, or remaining, employed, was not sufficient to tend to show that a criminal offence had been committed.
Citations:
[2019] UKEAT 0044 – 19 – 2910
Links:
Jurisdiction:
England and Wales
Employment
Updated: 27 November 2022; Ref: scu.650902
