Babula v Waltham Forest College

This Court granted permission to appeal a preliminary ruling in a whistle‑blowing employment case concerning the meaning of a "qualifying disclosure" under the Employment Rights Act 1996. The central legal issue was the proper construction of section 43B(1): whether the worker's "reasonable belief" must relate only to factual information or may extend to the existence of a legal obligation or to the commission of a particular criminal offence. The Employment Tribunal had followed Kraus v Penna and held that a worker cannot claim protection by a belief that a legal obligation exists where none in fact exists; on the pleaded facts the Tribunal concluded the conduct complained of was religious rather than racial and so did not amount to the offences relied on.

The Court of Appeal held that the construction in Kraus v Penna was not the only tenable construction and that, applying a purposive approach, a broader construction might be justified. As a result the appellant had a real prospect of success on the construction issue and there was a compelling reason for this court to give a definitive ruling. Permission to appeal was therefore granted.

Background and parties: Dr Michael Babula, employed as a lecturer at Waltham Forest College in 2004, resigned on 29 August 2004 and claimed constructive dismissal and unfair dismissal. He alleged detriment by a head of school arising from protected disclosures. He complained that a predecessor had separated students on religious lines and had expressed approval of the events of 11 September 2001; he reported the matter to the police and ultimately resigned.

Procedural posture: The case reached this Court by way of a renewed application for permission to appeal against decisions at Tribunal and at the Employment Appeal Tribunal. No evidence had been heard; the court proceeded on the basis of the pleaded facts. Permission to appeal had previously been refused on the papers by Mummery LJ; the renewed application was heard before Maurice Kay LJ and Buxton LJ.

Relief sought: Permission to appeal to the Court of Appeal to challenge the preliminary ruling that there was no qualifying/protected disclosure under the Employment Rights Act 1996.

Issues framed: (i) Whether the pleaded disclosures amounted to a "qualifying disclosure" within section 43B(1) of the Employment Rights Act 1996; (ii) whether a worker's "reasonable belief" in section 43B relates only to the factual information disclosed or may reasonably extend to the legal characterisation of those facts (for example, to the commission of a criminal offence or to the existence of a legal obligation); (iii) whether the Employment Tribunal was bound by the decision in Kraus v Penna and, if so, whether that construction was correct.

Court's reasoning and conclusion: The Tribunal had applied Kraus v Penna and concluded that the appellant's reasonable belief could not make a disclosure protected if, as a matter of law, no relevant offence or legal obligation existed; on the pleaded facts the Tribunal regarded the matters as religious rather than racial and so outside the offences and equal opportunities policy relied upon. The Court of Appeal considered that the construction adopted in Kraus was not the only tenable reading of section 43B(1) and that a purposive and broader interpretation might be justifiable. The court therefore concluded the appellant had a real prospect of success on the point and that there was a compelling reason to allow the appeal for a definitive ruling. Permission to appeal was granted for a three‑hour hearing before a court of three judges.

Additional observations: The Court noted criticisms of Kraus v Penna and confined its grant of permission to the construction issue, not resolving the ultimate merits of the underlying unfair dismissal or detriment complaints.

Permission to appeal was granted. The Court held that the construction of section 43B(1) adopted in Kraus v Penna was not the only tenable construction and that, on a purposive reading, a broader construction might be justified. The appellant therefore had a real prospect of success on the construction issue and there was a compelling reason for the Court of Appeal to give a definitive ruling.

Employment Tribunal (preliminary hearing) -> Employment Appeal Tribunal (appeal dismissed; Tribunal had followed the reasoning in Kraus v Penna) -> application for permission to appeal to the Court of Appeal refused on the papers by Mummery LJ -> renewed application to the Court of Appeal granted (this judgment: [2006] EWCA Civ 1154).