Street v Derbyshire Unemployed Workers' Centre

A whistleblowing disclosure is made in good faith when its dominant or predominant purpose accords with the statutory purpose of exposing and remedying wrongdoing. Reasonable belief in the substantial truth of the information does not by itself establish good faith.

A worker may have mixed motives, including resentment or antagonism. Such feelings do not necessarily defeat protection. Good faith is absent where an ulterior motive unrelated to the statutory objectives predominates. That assessment is primarily one of fact for the Employment Tribunal.

The conditions governing wider disclosures under section 43G of the Employment Rights Act 1996 are cumulative. Failure to satisfy any one condition prevents the disclosure from attracting automatic unfair-dismissal protection.

The appellant was dismissed after making allegations about the manager of an unemployed workers’ centre. She disclosed information both to a member of the centre’s management committee and to the treasurer of a local authority which funded the centre.

The Employment Tribunal found that she reasonably believed her allegations were substantially true. It nevertheless held that the disclosures were not made in good faith because her personal antagonism towards the manager motivated them. It therefore rejected her claim to automatic unfair-dismissal protection under section 103A of the Employment Rights Act 1996.

The Employment Appeal Tribunal upheld that decision and remitted an ordinary unfair-dismissal claim. The central issue before the Court of Appeal was whether good faith is distinct from belief in the truth of a disclosure and, where motives are mixed, when an ulterior motive defeats good faith.

1. The appeal was dismissed. The Employment Tribunal was entitled to find that the disclosures were not made in good faith and the Employment Appeal Tribunal had correctly declined to interfere with that factual conclusion.

2. The requirements in section 43G(1) of the Employment Rights Act 1996 are cumulative and partially overlapping. Good faith is distinct from reasonable belief in the substantial truth of the information, absence of personal gain and reasonableness in all the circumstances. A reasonable belief that an allegation is true therefore does not necessarily establish that its disclosure was made in good faith.

3. Per Auld LJ, with whom Jacob LJ and Wall LJ agreed, the Employment Tribunal should identify the dominant or predominant purpose of the disclosure. A disclosure lacks good faith where its predominant purpose is an ulterior motive rather than the statutory purpose of exposing or securing the remedy of wrongdoing within section 43B. The test does not require mathematical apportionment, a specified degree of predominance or conduct approaching dishonesty.

4. Mixed motives do not themselves defeat good faith. Resentment or antagonism may understandably arise when an employer fails to remedy perceived wrongdoing. Such feelings do not necessarily remove protection where the worker remains driven by the purpose of righting or preventing the wrong. The nature and strength of any ulterior motive must be assessed broadly and as a matter of fact.

5. The Tribunal had found that personal antagonism was the appellant’s dominant, if not sole, motive. That conclusion was open to it even though it also found that she reasonably believed the allegations were substantially true. The disclosures therefore did not qualify for automatic protection under section 103A.

6. Auld LJ further explained that reasonableness under section 43G(1)(e) requires consideration of all the circumstances. The factors in section 43G(3) are non-exhaustive, and motive may be relevant to that assessment. Loss of automatic protection does not prevent a worker from pursuing an ordinary unfair-dismissal claim.

Order: Appeal dismissed, with no order as to costs.

1. Court of Appeal (Civil Division): The court unanimously dismissed the appeal in [2004] EWCA Civ 964 and made no order as to costs.

2. Employment Appeal Tribunal: The Tribunal, in EAT/0508/02/ZT, upheld the finding that the disclosures lacked good faith. It remitted the ordinary unfair-dismissal claim to the same Employment Tribunal.

3. Sheffield Employment Tribunal: The Tribunal dismissed the claim to automatic unfair-dismissal protection under section 103A of the Employment Rights Act 1996. It found that personal antagonism, rather than good faith, motivated the disclosures.