Mr Babula was a college lecturer. He became concerned that his predecessor had made remarks to students that had incited racial hatred. When he reported his concerns to the college he was ignored, so he decided that he had no option but to report the matter to the police – he ‘blew the whistle’.
Babula claimed that the college’s treatment of him following this disclosure left him with no alternative but to resign. He brought a claim for unfair (constructive) dismissal contending that the disclosure he made was a protected disclosure under section 43 of the Employment Rights Act 1996.
The tribunal struck out Babula’s claim, stating that it was bound by the Employment Appeal Tribunal’s (EAT) decision in Kraus v Penna, which the tribunal stated was authority for the proposition that a disclosure is not a qualifying disclosure unless a criminal offence, or legal obligation, capable of breach actually existed. The tribunal said the lecturer’s comments were incitement to religious hatred, not racial hatred. There was no such offence at the time, so Babula’s disclosure could not be protected.
As the college’s equal opportunities policy did not refer to religious discrimination, Babula failed to show that the college was likely to fail to comply with a legal obligation. The tribunal said he could not, therefore, have reasonably believed that a criminal offence would be committed or a legal obligation breached so there was no whistleblowing claim.
The EAT dismissed Babula’s appeal, but he appealed to the Court of Appeal.
The Court of Appeal allowed Babula’s appeal, holding that Kraus v Penna was wrong in law and should no longer be followed.
In determining whether a disclosure is a qualifying disclosure, the whistleblower must show that they reasonably believed their disclosure tends to show that a criminal offence is likely to be committed, or legal obligation breached. What is relevant is the whistleblower’s reasonable belief and not whether or not they are right.
The fact the whistleblower may be wrong is not relevant, provided their belief is reasonable and the disclosure to their employer is made in good faith.
Babula had identified a criminal offence (incitement to racial hatred) and a legal obligation (the college’s equal opportunities policy). The question was whether or not he had a reasonable belief that the criminal offence had been or was going to be committed, or that the legal obligation had been or was likely to be breached. As his belief was reasonable, his disclosure was protected.
This case shows that a whistleblower’s belief may be reasonable even though it turns out to be wrong. Whether or not the whistleblower’s belief is reasonable is a matter for the tribunal to determine.
The purpose of the whistleblowing legislation is to encourage employees to come forward and make disclosures of information that are in the public interest. To expect employees to have detailed legal knowledge sufficient to determine whether in fact an offence is likely to be committed, or legal obligation breached, works against the purpose of the legislation.
By Chris Weaver, associate, and Oliver Brettle, partner, White & Case
This month in Employers’ Law
Find out more about which cases have immediate implications for your practices and policies.
Each month, Employers’ Law magazine outlines the latest legal rulings and what these mean for you. Subscribe online, or call 01444 445566.