Street v Derbyshire Unemployed Workers Centre
A disclosure must be made in good faith to be protected under the whistleblowing provisions of the Employment Rights Act. In this case the Court of Appeal examined what is meant by “good faith”.
The applicant made various allegations of impropriety against the manager of the respondent. The applicant then refused to co-operate with an independent investigation, which exonerated the manager and was critical of the applicant. She was dismissed and made a claim that she had been dismissed because of her disclosures and was automatically protected from unfair dismissal.
The tribunal dismissed her claim finding that the disclosures lacked good faith, an element required if they were to be protected under the act. The tribunal considered the applicant’s motive for making the disclosures and concluded that they were motivated by personal antagonism. The EAT upheld the decision on the basis that it was not sufficient for the applicant to have honestly believed the truth of the disclosures if the reason for disclosing the information was based on personal antagonism.
The Court of Appeal agreed with the EAT and concluded that a disclosure would not be made in good faith if an ulterior motive was the predominant purpose of making it, even if the person making the disclosure reasonably believed that the disclosure was true.
The Court of Appeal endorsed Judge McMullen QC’s dictum in the EAT that the purpose of the statutory provisions was not to “allow grudges to be promoted and disclosures to be made in order to advance personal antagonism”.
Lord Justice Auld acknowledged that “in good faith” has a core meaning of honesty, not merely an honest intention. However he noted that in the context of whistleblowing legislation, good faith means something more than honesty. He said resentment or antagonism will not necessarily be regarded as “negativing good faith, if when making the disclosure, the worker is still driven by his original concern to right or prevent a wrong”.
Whistleblowers may have a number of different motives for making their disclosures. The worry here is that this case will discourage disclosures. There is a suggestion that even if there is enough evidence to show that the disclosure was not fabricated, and that it would be in the public interest for the disclosure to be made, unless the reason the disclosure is made is to prevent a right or wrong then the disclosure would not be in good faith.
This places a further hurdle for the whistleblower to surmount to gain statutory protection for their disclosure.
What you should do
- Review your whistleblowing procedures and other avenues for employees to raise concerns.
- Ensure that you have procedures and policies in place that encourage open communication in the workplace and aim to resolve not antagonise issues.