Street v Derbyshire Unemployment Workers Centre

The Court of Appeal considered the meaning of the requirement that a disclosure be made "in good faith" for a disclosure to be a "protected disclosure" under Part IVA (inserted by the Public Interest Disclosure Act 1998) of the Employment Rights Act 1996, and so attract the automatic protection in section 103A against dismissal. The court summarised the three-tier disclosure regime (sections 43C, 43F and 43G) and emphasised that the conditions in section 43G are cumulative, with potential overlap between good faith, reasonable belief in substantial truth, absence of personal gain and overall reasonableness.

The Employment Tribunal had found that Mrs Street's communications were qualifying disclosures but lacked good faith because they were motivated by personal antagonism to the centre manager; the Employment Appeal Tribunal and the Court of Appeal upheld that factual finding. The Court held that "good faith" can include consideration of motive and that a disclosure may be unprotected where the worker's predominant purpose was an ulterior motive rather than to remedy or bring to light a public-interest wrong. At the same time the court explained that tribunals should only deny protection on grounds of bad faith where that ulterior purpose is dominant: mixed motives will not defeat protection unless the predominant motive is ulterior rather than to remedy the wrong.

The appellant, Frances Muriel Street, was dismissed by the Derbyshire Unemployed Workers' Centre after making allegations against the Centre's coordinator. She claimed automatic protection from unfair dismissal under section 103A of the Employment Rights Act 1996 on the basis that her communications were "protected disclosures" under Part IVA (sections 43A, 43B, 43C, 43G etc.), inserted by the Public Interest Disclosure Act 1998.

The procedural history was: claim to the Employment Tribunal (Sheffield) which found the disclosures to be qualifying but concluded they were not made "in good faith" and dismissed the section 103A claim; the Employment Appeal Tribunal upheld that finding and remitted the case to the Employment Tribunal to consider ordinary unfair dismissal; the present appeal to the Court of Appeal followed.

The principal legal issue was the meaning and effect of the statutory requirement that a qualifying disclosure be made "in good faith" for it to be protected. The parties disputed whether "in good faith" should be equated with simple honesty or reasonable belief in truth, or whether it additionally required absence of an ulterior motive such as personal antagonism. The court reviewed the statutory three-tier scheme (disclosure to employer or responsible person under section 43C; to a prescribed person under section 43F; and "other" disclosures under section 43G), emphasising that section 43G imposes cumulative conditions including good faith, reasonable belief in substantial truth, absence of personal gain and overall reasonableness (with factors listed in section 43G(3)).

The Court of Appeal accepted that there is overlap between the requirements but concluded that Parliament intended "good faith" to be capable of adding something to reasonable belief in truth. On the facts the Employment Tribunal had found that, although Mrs Street reasonably believed her allegations, she was motivated predominantly by personal antagonism to the manager; that finding was open on the evidence and justified denying protection. The court explained that tribunals should normally regard a disclosure as lacking good faith only where the worker's predominant motive was an ulterior one unrelated to remedying the public-interest wrong. The court also noted the wider context: the statutory protection aims to promote public-interest disclosures, but ordinary unfair dismissal remedies remain available where automatic protection under section 103A is lost.

Appeal dismissed. The Court of Appeal held that the statutory requirement that a disclosure be made "in good faith" can require enquiry into motive and may be negatived where the predominant purpose of the disclosure is an ulterior motive (for example personal antagonism) rather than to remedy or expose a public-interest wrong. The Employment Tribunal's factual finding that the appellant's predominant motive was personal antagonism was open on the evidence and accordingly the denial of protected status was upheld, with the Court stressing that lack of good faith should be found only where an ulterior motive is dominant.

Claim to Sheffield Employment Tribunal (dismissed on the basis that disclosures were not made in good faith); Employment Appeal Tribunal (EAT/0508/02/ZT) upheld the Employment Tribunal's factual finding and analysis and remitted the case to the Employment Tribunal to consider ordinary unfair dismissal; Court of Appeal ([2004] EWCA Civ 964) dismissed the appeal and upheld the EAT/ET analysis.