Siobhan Murphy
Posted on 12 Oct 2021

The Employment Appeal Tribunal emphasises the importance of taking a structured approach when assessing qualifying disclosures in whistleblowing cases.

Martin v London Borough of Southwark [UKEAT/0239/20/JOJ]

Background

The Claimant was a teacher at Evelina Hospital School and had concerns that teachers, including himself, were working in excess of statutory directed time permitted for teachers under the School Teachers Pay and Conditions Document ("STPCD"). The Claimant made the following disclosures regarding his concerns:

  1. The Claimant emailed the head teacher to state “I am looking at our working hours for teachers and seem unable to reconcile them to statutory guidance, and all my conservative calculations, clearly I may be missing something”. The Claimant then gave his calculations and ended the email with “From my calculations the excess of directed time for each full-time teacher is in excess of 97.5 hours for this academic year… clearly I may be missing something. Please may we discuss this?” ("Disclosure 1")
  2. The Claimant emailed the governing body in his capacity as school governor to state "According to the ‘governance handbook for academies, multiacademy trusts and maintained schools … we, the governing body, are responsible for making sure that headteachers benefit from any statutory entitlements and comply with the duties imposed on them which are contained within the STPCD. I am concerned we may be in breach of the second part of this. I have emailed the head about my concerns and the email trail is below… it is likely that, over the past two years teaching staff [have] worked in excess of 212 hours over the statutory directed time…” ("Disclosure 2")
  3. The Claimant subsequently sent various governors an email enclosing the committee agenda, which included the Claimant's issues with Directed Time as an agenda item. The email referred to the STPCD and gave an explanation of Directed Time. It stated that the governors are “collectively responsible for this situation that has happened and is continuing to happen. It is therefore incumbent on us to do right by the teachers who help make the school what it is.” ("Disclosure 3")
  4. A further email was also sent externally to a prescribed person, which stated “I am writing to you as a teacher in a local authority school, concerning the allocation of directed time for teaching staff in my school”. The Claimant referred to “the accumulation of excess directed time over and above the statutory 1265 hours a year for the periods mentioned is greater than 220 hours for all full-time teaching staff” and requested guidance as to how best to resolve the issue. ("Disclosure 4")
  5. Finally, the fifth disclosure was another email from the Claimant to advise the Respondents that he had engaged with the ACAS early conciliation process to resolve his issues.” ("Disclosure 5")

The Claimant subsequently brought a claim that he had been subjected to detriment on the grounds that he made protected disclosures, which required the Employment Tribunal ("ET"), in the first instance, to decipher whether any qualifying disclosures had been made.

What is a qualifying disclosure?

Section 43B of the Employment Rights Act 1996 ("ERA 1996") makes provision for disclosures that qualify for protection. For a disclosure to constitute a "qualifying disclosure", it must be (i) a disclosure of information; (ii) which the worker reasonably believes is being made in the public interest; (iii) of which the subject matter tends to show that one or more of the six specified types of malpractice or failure has taken place, is taking place or is likely to take place; and (iv) and such belief is reasonably held. Unless all four conditions are satisfied there will not be a qualifying disclosure.

A qualifying disclosure will amount to a protected disclosure, capable of protection under the ERA 1996, if it is made to the correct person (as listed in sections 43C to 43H of the ERA 1996).

What did the Employment Tribunal decide?

The ET held that:

  1. Disclosure 1 was not a qualifying disclosure because it was "an email raising a potential concern". The purpose of the email was to invite a discussion and, as such, amounted to an enquiry rather than a disclosure of information that tends to show that there had been a breach of a legal obligation or a likely breach of a legal obligation.
  2. Disclosure 2 was also not a qualifying disclosure because it was "not saying that there is a breach of a legal obligation but is querying certain data. It [was] simply a follow-on from the previous email".
  3. Disclosures 3, 4 and 5 followed a similar analysis and they were each held not to constitute a qualifying disclosure on the basis that they were not made in the public interest. When coming to this decision, the ET failed to take into account the Claimant's own belief as to whether such disclosures were in the public interest.

The claim was therefore dismissed at a full hearing on the basis that the Claimant had not made qualifying disclosures. The Claimant subsequently appealed to the Employment Appeal Tribunal ("EAT").

What did the EAT decide?

The EAT held that, in relation to each disclosure, the ET had not adopted the correct structured approach necessary to determine whether there had been a qualifying disclosure. Instead, it "elided a number of the components required to establish a qualifying disclosure". The Claimant's appeal was therefore allowed and the matter was remitted for hearing before a newly constituted ET.

What can employers take from this?

The EAT stressed the importance of adopting a structured analysis when considering whether the Claimant had made qualifying disclosures. In most cases, it will be important to work through all four stages of the relevant test to clearly show which, if any, of the four necessary conditions are accepted.

Whilst this is generally guidance to assist ETs, it is helpful for employers to bear this four-stage test in mind when they receive potential disclosures from employees.  By doing this, it will help ensure that any protected disclosures can be properly dealt with promptly and, hopefully, avoid the need for the employer to attend an ET later down the line.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy to discuss any issues you are facing.