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In the case of Martin -v- London Borough of Southwark and others, the claimant was a teacher at the Evelina Hospital School in London. He raised concerns on multiple occasions in a series of emails regarding the fact that he and his colleagues were, in his view, being asked to work excessive hours. However, at no point did he make any clear allegations in relation to these concerns. Instead, his emails took the form of queries where he asked for explanations or consideration regarding working hours in the school.

Generally, for there to be a qualifying whistleblowing disclosure, a worker must impart (usually to their employer) information about relevant failures by the employer which they reasonably believe to be in the public interest. Where any such qualifying disclosure is made, the worker will benefit from protection against being subjected to a detriment under the ERA 1996.

In the Martin case, the tribunal dismissed the claimant’s whistleblowing claim on the basis that he had not made a protected disclosure. In their view, the emails he sent were queries as opposed to disclosures of information tending to show a breach of a legal obligation. The claimant appealed.

The EAT found that the tribunal had failed to sufficiently analyse whether the claimant had disclosed information and, if so, whether he believed that the information tended to show a breach of a legal obligation. The EAT also found that the tribunal failed to properly consider whether the claimant had believed his disclosures were in the public interest, substituting their own objective finding of whether they were – in the tribunal’s view – in the public interest. This in turn caused the tribunal to skip the key legal tests required in order to establish whether a disclosure is a protected disclosure.

The EAT set out the correct approach for assessing whether there had been a protected disclosure, which required consideration of the necessary elements in turn, including:

  • Whether there had been a disclosure of information (showing or tending to show a relevant failure)? Here, the tribunal had wrongly identified one disclosure made by the claimant as an enquiry rather than a disclosure of information. In the EAT’s view, the legal test should avoid an overly prescriptive approach to what amounts to information.
  • Whether the claimant believed that the disclosure was made in the public interest?
  • If so, was that belief reasonable?
  • Whether the claimant believed that the disclosure tended to show a breach of a legal obligation?
  • If so, was that belief reasonable?

The EAT further noted that the tribunal appeared to consider that where information was already before the respondent, there could be no further disclosure of information to it. They found this contrary to the express provisions of section 43H ERA, which makes it clear that a disclosure can be a disclosure of information even when made to a person that already knows the information.

The claimant’s appeal was, therefore, allowed and his case has been remitted to be heard by a newly constituted tribunal.

Whistleblowing claims are often inherently complex and require a detailed examination of the legal tests around qualifying disclosures to determine whether a protected disclosure has, in fact, been made. The EAT’s judgment provides a helpful and incredibly clear reminder of the legal tests involved and can assist parties in approaching potential whistleblowing claims in a structured and methodical way.

In addition to being particularly complex, defending whistleblowing claims can often be expensive for employers. In the present case, for instance, Mr Martin resigned in 2019 and litigation is likely to be ongoing for some time, at expense to both parties.

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