Babula v Waltham Forest College

At the permission stage, the court held that a statutory construction appeal had a real prospect of success where the lower court’s interpretation was not the only tenable construction. A broader purposive construction of section 43B of the Employment Rights Act 1996 was arguable. The importance of the issue, and the absence of prior consideration at Court of Appeal level, supplied a further compelling reason for the appeal to be heard. The court granted permission without determining the final meaning of the provision or the ultimate merits of the whistle-blowing claim.

Dr Michael Babula, a lecturer at Waltham Forest College, claimed constructive and unfair dismissal and detriment after reporting alleged discriminatory teaching and statements concerning terrorist attacks. He pleaded that his disclosures qualified under section 43B of the Employment Rights Act 1996, relying on a reasonable belief that a criminal offence had been committed or was likely to be committed and that legal and contractual obligations had been breached.

The Employment Tribunal rejected the preliminary issue, considering that the pleaded facts concerned religion rather than race and that it was bound by Kraus v Penna. The Employment Appeal Tribunal followed its earlier decision. After Mummery LJ refused permission on paper, Babula renewed the application. The central question was whether the statutory reasonable-belief requirement concerned only the underlying information or could extend to the existence of the relevant offence or legal obligation.

The renewed application for permission to appeal was granted by Maurice Kay LJ, with Buxton LJ agreeing.

1. Permission threshold. The proposed appeal concerned an important and unresolved question of statutory construction. The construction adopted in Kraus v Penna was not the only tenable interpretation of section 43B. Accordingly, Babula had a real, rather than merely fanciful, prospect of success on the construction issue. The possibility of a broader purposive approach also justified further consideration.
2. Issue left open. The court did not determine whether a worker’s reasonable belief may concern the actual existence of a criminal offence or legal obligation, rather than only the factual information disclosed. Nor did it determine the underlying prospects of the whistle-blowing claim. The permission decision was confined to whether the construction adopted below required authoritative consideration.
3. Order. The appeal was to be heard by a court of three, preferably including a judge with Employment Appeal Tribunal experience. The hearing was limited to three hours, and permission was given to revise the appellant’s skeleton argument within 14 days.

1. Court of Appeal (Civil Division): On 21 July 2006, granted the renewed application for permission to appeal.
2. Employment Appeal Tribunal: Dismissed the appeal arising from a preliminary hearing in the Employment Tribunal and followed Kraus v Penna.
3. Employment Tribunal: Resolved the preliminary issues in favour of the College, holding that the pleaded case could not establish the relied-on racial-incitement offence or breach of the race-equality policy.
4. Permission application: Mummery LJ had refused permission on the papers before the renewed application to the Court of Appeal.