In the recent EAT case of, Goode v Marks & Spencer Appeal No. UKEAT/0442/09/DM, the fact that protected disclosures have to be subject of a 'reasonable belief' was explored.
As we know the protected disclosures fall under:
Section 43B(1),ERA (a-f)
In order to be afforded protection under PIDA the disclosure must relate to one of six categories of subject matter:
That a criminal offence has occurred or is likely to occur
A person has failed or is likely to fail to comply with a legal obligation;
A miscarriage of justice has occurred or is likely to occur;
The health and safety of an individual has been or is likely to be endangered;
Or information tending to show one of the above has been or is likely to be deliberately concealed.
The leading case in this area is that of Babula v Waltham Forest College. Court of Appeal, 2007 EWCA Civ 174. Lord Justice Wall, giving the judgment said that, In each of the instances identified in S.43B(1)(a)-(f), the whistleblower has to establish a reasonable belief that the information being disclosed ‘tends to show’ one or more of the situations in (a)-(f). However, nothing in that section requires a whistleblower to be right. Provided his or her belief is held by the tribunal to be objectively reasonable, neither the fact that the belief turns out to be wrong nor the fact that the information which the claimant believed to be true does not in law show, for example, that a criminal offence is likely to be committed or that a person is likely to be in breach of a legal obligation, is sufficient of itself to render the belief unreasonable and thus deprive the whistleblower of the protection afforded by the statute.
The recently reported case of, Goode V Marks And Spencer, the Appellant's expression of an opinion about an employer's proposal, after consultation, to change a discretionary enhanced redundancy scheme does not amount to a qualifying or protected disclosure. The EAT supported the ET who could not see that the Claimant could have a reasonable belief looking at the facts that he had been dismissed because of a 'sham' redundancy scheme.
The Appellant had taken a number of steps, including complaining to his line manager, contacting the Times and completing a survey, which he sought to argue were protected disclosures - all in relation to the detail of a proposed redundancy scheme - which should entitle him to the protection of section 103A ERA and render his subsequent dismissal automatically unfair. Such information as the Appellant sought to rely on to establish that protected disclosures had been made was not enough to be the subject of a reasonable belief that it tended to show that the Respondent was likely to fail to comply with any legal obligation to which it was subject. The appeal was dismissed.
The case is a reminder that when defending against whistleblowing cases it is often worth arguing why the protected disclosure could not possibly be based on a reasonable belief...of course whether the disclosure is made in 'good faith' or not is an entirely different but essential chapter.