In Martin v London Borough of Southwark, the Employment Appeal Tribunal (EAT) reviewed the decision of the Employment Tribunal (London South) that Mr. Martin’s disclosures did not amount to qualifying disclosures protected by law.
In 1999, the Public Interest Disclosure Act 1998 (PIDA) inserted provisions into the Employment Rights Act 1996 (ERA) that protect employees and workers from being subjected to a detriment as a result of making a protected disclosure. It also protects employees from a dismissal if the sole or principal reason for the dismissal is that the employee made a protected disclosure.
Why can such protection be important
The protection afforded to whistleblowers by the ERA can be important for a variety reasons and non-exhaustive examples include:
1. In cases where there has been a dismissal:
2. In cases where an employee has suffered a detriment;
What is a qualifying disclosure?
The ERA says that a qualifying disclosure is a:
Mr. Martin alleged that he made protected disclosures and as a result had been subjected to a detriment. Mr. Martin made five disclosures in respect of which he was seeking protection. These related to working excess hours which he stated breached “‘statutory directed time”. The tribunal determined that that none of disclosures relied upon were protected disclosures. As such, his claim failed. Mr. Martin appealed.
The EAT gave a useful summary of the case law relevant to protected disclosures. In particular, it re-emphasised that:
The EAT reviewed the Employment Tribunal’s approach as to whether Mr. Martin had made a qualifying disclosure. The EAT found the tribunal’s approach to examining this issue was incorrect. It re-iterated that the following 5-stage test should be applied in determining whether a disclosure is protected:
The EAT highlighted the importance of considering all five questions and determining which criteria has been met. In the first instance, the Tribunal did not concentrate on the criteria. Instead, it found that Mr. Martin was raising a “potential concern” or enquiry as opposed to asserting non-compliance with a legal obligation on the part of his employer. However, the EAT was clear that using cautious language (and the absence of a direct allegation) did not mean that Mr. Martin could not have reasonably believed that the information he disclosed tended to show a failure to comply with a legal obligation.
The case was remitted to a different tribunal to consider Mr. Martin’s claims. The judgment demonstrates the importance of considering and applying the correct test when assessing if a disclosure amounts to a protected disclosure.
As Mr. Martin’s case shows, whistleblowing claims can be complex. Demonstrating why a disclosure is protected is just one hurdle that a claimant will need to prove in order to be successful in their claim. Waterfront Solicitors’ Employment Team are experienced in bringing and defending whistleblowing claims.
The Workers (Predictable Terms and Conditions) Act 2023, creates a statutory right for qualifying workers to request a more predictable pattern of work. This right works similarly in a few ways to the right to request a more flexible working pattern.
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