Case round-up

This week’s case round-up

Whistleblowing: honest belief not enough
Street v Derbyshire Unemployed Workers Centre, EAT [22 September 2003]

Street disclosed information to Chesterfield Borough Council about alleged
wrongdoing by a senior manager at the Derbyshire Unemployed Workers Centre. An
investigation exonerated the manager, and concluded that the allegations were
unfounded and "based on mischief-making".

Subsequent disciplinary proceedings resulted in Street’s dismissal. She
brought tribunal proceedings, alleging that she had been unfairly dismissed for
making a protected disclosure. The tribunal held that she had not made a
protected disclosure as defined in Part IVA Employment Rights Act 1996, as she
had not been acting in good faith. She had been motivated by personal
antagonism. Her claim subsequently failed, but she appealed.

The tribunal’s decision was upheld. Her honest belief in the material
disclosed was not sufficient to satisfy the requirement of good faith. The
motive for an act can change its character from good to bad, and it is
therefore relevant for a tribunal to assess the motive as a question of fact.
Street believed the disclosed information was true but, as she had reported it
for reasons based on a personal vendetta, she had not acted in good faith.

Whistleblowing: qualifying disclosure or not?
Kraus v Penna plc and Syltone plc EAT [20 November 2003]

Kraus entered into a consultancy agreement with Penna to provide
professional services to Syltone relating to a reorganisation and redundancy
programme. Following the agreement’s termination, Kraus brought tribunal
proceedings.

He claimed he had been subjected to a detriment (the termination of his
contract) because he had made a protected disclosure to Syltone’s director that
a proposed course of action contravened the company’s legal obligations under
employment law.

The claim was struck out on the grounds that it was misconceived, having no
reasonable prospect of success, but Kraus appealed.

The appeal was dismissed. Under s43B(1)(b) Employment Rights Act 1996, a
qualifying disclosure covers any disclosure of information that the worker
reasonably believes shows that a person has failed, is failing or is likely to
fail to comply with any legal obligation they are subject to.

The word ‘likely’ required more than a possibility or a risk that an
employer might fail to comply with a relevant legal obligation. The information
disclosed should tend to show that it was more probable than not that the
employer would fail to comply.

Accordingly, Kraus’s advice that the employer could breach employment
legislation did not actually amount to a qualifying disclosure.

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