Reasonableness in Whistleblowing Cases

We recently published a blog on how ‘reasonableness’ as a concept is used in harassment cases. In this article, we consider how the concept is applied in whistleblowing cases.

Protection for whistleblowers is derived from the Employment Rights Act 1996 (“the ERA”). In order for a whistleblower to be protected, the information they disclose must qualify as a protected disclosure in law. Pursuant to section 43B(1) of the ERA, in order for something to constitute a protected disclosure, the disclosure must, in the ‘reasonable belief’ of the worker:

·       Be made in the public interest, and

·       tend to show that one of the six relevant failures listed in s.43(1)(a)-(f) has occurred, including commission of a criminal offence and breach of a legal obligation, amongst others.

Whether a worker’s belief is reasonable, and what constitutes reasonableness in this context, are therefore key elements to establishing whether someone is entitled to whistleblower protection. As made clear by the Court of Appeal in Babula v Waltham Forest College 2007 ICR 1026, CA, the focus here is on what the worker believed, not on whether they were right – in that case, the Court said [at para. 75]:

“Provided his belief (which is inevitably subjective) is held by the tribunal to be objectively reasonable, neither (1) the fact that the belief turns out to be wrong-nor (2) the fact that the information which the claimant believed to be true (and may indeed be true) does not in law amount to [one of the failures listed in s.43(1)(a)-(f)] is, in my judgment, sufficient, of itself, to render the belief unreasonable and thus deprive the whistleblower of the protection afforded by the statute.”

This being so, what would lead a Tribunal to properly conclude that the worker’s belief was not reasonably held?

As is clear from the wording of the statute, the ‘reasonable belief’ elements concerns both (i) whether a disclosure is made in the public interest, and (ii) whether the disclosure tends to shows one of the listed failures has occurred or is going to. These two different elements, and how they relate to reasonableness, will be considered in turn below.

Public interest

The public interest requirement was introduced to address a problem that arose in Parkins v Sodexho Ltd 2002 IRLR 109, namely the use of protected disclosure provisions in private employment disputes that did not engage the public interest. For example, if an employee were to complain to their boss that a senior manager had bullied them in a discriminatory way, although this might tend to show that a legal obligation had been breached, the disclosure would be unlikely to be in the public interest because the incident occurred between private individuals. The outcome may be different if the perpetrator were a public figure, e.g. if an MP bullied one of their employees.

Some of the six failures will mean the assessment of reasonable belief is an easy one – criminal offences, miscarriages of justice, endangerment of health and safety, damage to the environment and concealment of such failures are matters that are, by their nature, in the public interest, and a person making a disclosure about one of these failures will very likely be deemed to have reasonable belief in the public interest of making their disclosure.

In other cases where the reasonable belief/public interest element is contested, the Tribunal’s focus will be not on whether the disclosure was actually in the public interest, but whether the worker’s belief in the public interest element was reasonable.

In Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed (Public Concern at Work intervening) 2018 ICR 731, the EAT had concluded that the public interest test in S.43B(1) can be satisfied even where the basis of the public interest disclosure is wrong and/or there was no public interest in the disclosure being made, provided that the worker’s belief that the disclosure was made in the public interest was objectively reasonable. On appeal, the Court of Appeal agreed and stressed that the necessary belief is simply that the disclosure is in the public interest — the particular reasons why the worker believes that to be so are not of the essence.

Chesterton was recently applied by the EAT in Twist DX Ltd v Armes (UKEAT/0030/20/JOJ (V)), where the EAT said [at para. 72]:

“The perspective of the worker and their evidence as to why they thought that it was in the public interest to make the disclosure are therefore relevant, but primarily to deciding whether they actually held that belief. If they did, the reasonableness of that belief is for the ET to determine by reference to its views as to what is in the public interest, albeit on the basis that the question is whether the belief is reasonable rather than whether it is right.”

The principles outlined below relating to reasonable belief in what the disclosure tends to show are also relevant to how ‘reasonable belief’ will be assessed in the context of public interest.

What the disclosure tends to show

As is clear from the wording of the statute, the worker does not have to reasonably believe that one of the listed failures has occurred – rather, they have to disclose information that, in their reasonable belief, tends to show one of the listed failures has occurred or is going to.

The wording of the statute, and how it has been applied in Employment Tribunal (“ET”) cases, suggest that the assessment of what is reasonable in this context has both a subjective and an objective element.

The use of “in the reasonable belief of the worker” shows that the belief can be specific to that particular worker and that the assessment will not be on what constitutes a reasonable belief generally. However, the case-law in this area shows that there is also an element of objectivity to the test. For example, in Korashi v Abertawe Bro Morgannwg University Local Health Board 2012 IRLR 4, the EAT held that assessing ‘reasonable belief’ involves applying an objective standard to the personal circumstances of the discloser; those with professional or insider knowledge will be held to a different standard than laypersons in respect of what it is ‘reasonable’ for them to believe. This was elaborated upon in Phoenix House Ltd v Stockman 2017 ICR 84 where it was suggested that the subjective element of the test is that the worker must believe that the information disclosed tends to show one of the relevant failures, and the objective element is that that belief must be reasonable.

This combined subjectivity and objectivity was recently confirmed by the EAT in Dodd v UK Direct Solutions Business Ltd [2022] EAT 44, where it said [at paras. 55 and 65]:

“The test of what they believed is also subjective inasmuch as it is about what they themselves believed… I turn to the test created by the inclusion of the word “reasonable” in the phrase “in the reasonable belief of the worker making the disclosure”. This turns on whether the tribunal itself thinks that the belief is reasonable, not on whether the worker thought so, or thinks so. In that sense the test is objective.”

The aforementioned case of Korashi also set down the principle that, although the threshold for belief is low, it must be based on some evidence. In that case it was suggested that rumours, unfounded suspicions, uncorroborated allegations and other things of this nature will not be enough to establish a reasonable belief.

As made clear in by the EAT in Darnton v University of Surrey 2003 ICR 615 the reasonable belief requirement allows for qualifying disclosures in circumstances where it transpired that the worker was wrong, e.g. about the fact that a crime had been committed. However, truth and accuracy are not entirely irrelevant considerations. For example, in cases where the worker relies on a belief in a breach of legal obligation but cannot refer to any specific legal obligation, they may struggle to establish the ‘reasonable belief’ element – this was the case in Kilraine v London Borough of Wandsworth 2018 ICR 1850.

Specific examples of how these principles have been applied in the case-law are set out below.

Specific illustrations from case-law

Public interest

McInally and anor v City of York Council ET Case No.1800630/16 – the claimant was employed at a care home; she complained to her manager about understaffing and the need for urgent support following the sudden death of a patient. The ET found that M had a reasonable belief that this disclosure was in the public interest as it related to the welfare of the care home residents as a whole.

However, in Marriott v Scarborough Borough Council ET Case No.1800295/16, the ET held that a council employee’s disclosure was not in the public interest. He disclosed to his employer that colleagues were taking their vans home at night; these concerns had been subject to an earlier investigation, in which it had been held that it was appropriate for staff on the call-out/stand-by rota to take their vans home. The ET could not see how the worker’s disclosure was in the public interest and noted the worker’s personal resentment of the policy given that he did not want to be a call-out worker and therefore could not take his van home. The ET held that this was a private dispute and the worker could not have believed that there was any wrongdoing since the policy had been properly explained to him.

In the recent case of Dobbie v Felton t/a Feltons Solicitors UKEAT/0130/20, the EAT overturned an ET’s finding that disclosures made by a solicitor about alleged overcharging by the firm for which he worked, did not pass the public interest test. The disclosures were made in the context of the solicitor’s concerns about a client’s prospects of recovering litigation costs from its opponent. The EAT held that if the solicitor held a genuine and reasonable belief that the disclosures were in the public interest, that did not have to be his predominant motive in making them. If he reasonably believed that he was disclosing information that tended to show the firm was in breach of the Solicitors Accounts Rules or other regulatory obligations, the disclosures did not cease to be protected merely because his motive was protecting the client’s position.

What the disclosure tends to show

In Wharton v Leeds City Council EAT 0409/14, the EAT held that the worker had had a reasonable belief that a legal obligation had been breached. In that case, the worker had been employed by the Council as a community creator. He claimed that his dismissal was the result of him raising concerns about how the Council was using its Arts Council England (ACE) funding. Overturning the earlier ET decision – which found that the worker had merely been complaining about non-compliance with an internal policy/strategy – the EAT found it did not matter that the worker had not seen the ACE funding agreement; it was possible that he believed that his job description, the funding bid or the Council’s strategic policies were incorporated into, or reflected obligations contained within, the funding agreement, and this was sufficient material on which to establish a reasonable belief.

In contrast, in Starforth v Eagle Pest Control Services (UK) Ltd ET Case No.2510727/06, the ET held that the reasonable belief element was not established. There, a pest control technician told his employer that it could be a breach of health and safety regulations for him to spray an area with insecticide to eradicate fleas unless he had personally seen the fleas or had obtained evidence of their existence through monitoring. The ET held that, although the worker’s belief was genuine, it was not reasonable because there was no evidence that categorically stated that identification of the relevant pest must be made personally before an insecticide is used. Further, the worker had failed to take into account that there was only a negligible risk to health and safety.

Conclusions

As S.43B(1) and the related case-law make clear, a person does not have to be right about their disclosure being in the public interest and/or tending to show one of failures listed in s.43B(1)(a)-(f) has occurred, or is going. Rather, they need to have a reasonable belief in this. What constitutes reasonable has both an objective and a subjective element – the assessment will focus on the belief of that specific worker, but will also look at what would have been objectively reasonable for a worker in that particular context to believe. Although a worker does not have to transpire to be right in their belief, truth and accuracy may be a relevant factor when making the assessment. As will the evidence available to the worker at the time they formed their belief.

These principles arguably portray a whistleblowing regime that is sympathetic to workers: provided a worker held a reasonable belief, they do not have to have been right in order to acquire whistleblowing protection.