In this article...

• Worker's belief
• Burden of proof
• Agency workers - stop press

Sarah Leverton looks at three recent cases which appear to have widened the scope of the statutory protection available to whistleblowers in the workplace.

Provisions inserted into the Employment Rights Act 1996 (ERA) by the Public Interest Disclosure Act 1998 (the “whistleblowing legislation”) protect employees against detriment and dismissal for making protected disclosures.

Worker's belief

For the purposes of the whistleblowing legislation, a qualifying disclosure is one which, in the reasonable belief of the person making it, tends to show that certain types of malpractice – including criminal offences and failure to comply with legal obligations – are occurring or are likely to occur.

In Babula v Waltham Forest College the Court of Appeal considered whether the statutory protection is lost where the employee is mistaken in his or her belief that a criminal offence has been committed or a legal obligation has been breached.
 
Mr Babula, an American citizen, was employed as a business studies lecturer. His students told him that one of their previous lecturers, Mr Jalil, had not taught them the curriculum but had instead used the lesson time to teach religious studies. They reported that he had divided the class into Muslim and non-Muslim groups, had indicated his support for the 9/11 terrorist attacks in New York and had expressed a wish that a similar event would occur in London. One student said that she had reported her concerns to the college but had not received a satisfactory response.

Mr Babula was concerned that Mr Jalil presented a threat to national security. He raised the matter with Mr Jalil’s previous supervisor, who took the view that no action was required. Consequently, he reported the matter to the police, the CIA and the FBI, informing the college immediately in writing that he had done so. He claimed that this disclosure led to a series of actions by the college which left him with no alternative but to resign.

Mr Babula brought tribunal proceedings, alleging that he had been constructively dismissed and that his dismissal was automatically unfair under section 103A ERA because it was by reason of his having made a protected disclosure. He claimed that he had reasonably believed that Mr Jalil had committed the criminal offence of inciting racial hatred and that the college was in breach of its equal opportunities policy.

The tribunal struck out the claim as having no reasonable prospect of success. In Kraus v Penna plc and anor the EAT had previously held that a worker cannot rely on the whistleblowing legislation if, as a matter of law, there is no criminal offence or breach of a legal obligation, even if the worker reasonably believed this to be the case.

In the tribunal’s view, Mr Jalil’s actions were based on religion, not race, and at the relevant time there was no offence of inciting religious hatred. Furthermore, Mr Babula had failed to show that the college’s equal opportunities policy had placed it under a legal obligation to report Mr Jalil’s conduct. Thus, applying Kraus v Penna, there was no qualifying disclosure. That decision was upheld by the EAT.

The Court of Appeal allowed an appeal by Mr Babula, holding that Kraus v Penna was wrongly decided. It was not reasonable, in the Court’s view, to expect workers to have sufficient knowledge of criminal law to enable them to decide if the particular facts which they reasonably believed to be true could, as a matter of law, constitute a criminal offence.

Key point

So long as the employee’s belief is objectively reasonable, it does not matter if the belief turns out to be wrong, or if information which the employee believed to be true does not in law disclose a criminal offence or a breach of a legal obligation.

Burden of proof

In the second case, Kuzel v Roche Products Ltd, the EAT gave guidance on the burden of proof in a case of unfair dismissal for making a protected disclosure.

In March 2005 Dr Kuzel was dismissed from her position as head of regulatory affairs for Roche Products Ltd. She claimed that the dismissal was automatically unfair because it was by reason of her having made a number of protected disclosures.

The employment tribunal, having rejected the reason for dismissal put forward by Roche, held that the dismissal was unfair under the ordinary provisions in the ERA because the employer had failed to establish a potentially fair reason. In the tribunal’s view, however, Dr Kuzel had failed to establish that her dismissal was automatically unfair under the whistleblowing provisions.

Dr Kuzel appealed to the EAT, arguing that the tribunal should have applied the burden of proof that applies in discrimination claims because whistleblowing had been treated in previous cases as a form of discrimination. The EAT disagreed.
 

Key points

		An employer’s failure to establish a potentially fair reason for dismissal does not automatically result in a finding of unfair dismissal under section 103A ERA.
		In this situation, however, if an employee with a year’s qualifying service raises a prima facie case that the reason fell within section 103A, the tribunal is entitled to infer that this was the true reason for dismissal.
		It remains open to the employer to satisfy the tribunal that the protected disclosure was not the reason (or principal reason) for dismissal, even if the real reason as found by the tribunal is not that advanced by the employer.
		Employees with less than a year’s service are also entitled to bring a claim under section 103A but they must first establish, on the balance of probabilities, that they made a protected disclosure and that this was the reason for the dismissal.

Agency workers - stop press

Finally, in the recent case of Croke v Hydro Aluminium Worcester Ltd, the EAT concluded that in construing the statutory definition of “worker” for the purposes of the whistleblowing provisions, it is appropriate to adopt a purposive approach.

This meant that, where an individual supplies his services to an employment agency through his own company and the employment agency, in turn, provides the services of that company to an end user (the client), it may be that in appropriate circumstances the individual is a “worker” of the client for the purposes of the whistleblowing protection.