Bolton School v Evans

The Court of Appeal rejected an "entire transaction" approach that would treat investigatory conduct as part of a protected disclosure under the Employment Rights Act 1996. The Employment Tribunal had found that the respondent's actions in testing the school network amounted to a qualifying disclosure under section 43B (relying on the seventh Data Protection principle in part 1 of schedule 1 to the Data Protection Act 1998) and that the subsequent warning led to constructive dismissal under section 103A. The Employment Appeal Tribunal held that the employer had genuinely believed the claimant had committed misconduct in entering the system and that that belief, not the protected disclosure, was the reason for the disciplinary sanction. The Court of Appeal agreed with the EAT: the ordinary meaning of "disclosure" does not extend to exempt investigatory acts which are the cause of disciplinary action; causation requires examination of the employer's reasons and mental processes; the warning was given for misconduct and not for making the protected disclosure.

Background and facts:

• The claimant, a teacher in the school's ICT department, was concerned about network security after a change in the intended security arrangement. On 5 September he obtained password information, decoded it over the weekend with assistance, and on the following Monday used a pupil-access PC to gain administrative access and disabled some user accounts. He informed colleagues and the headmaster of what he had done. The school suspended and then disciplined him, giving a written warning for what the headmaster described as deliberate unauthorised access.

Nature of the claim and procedural posture:

• The claimant alleged that his conduct and the warning were connected to a protected disclosure under the whistle-blowing provisions of the Employment Rights Act 1996 (notably section 43B) and that he was therefore constructively unfairly dismissed under section 103A. The Employment Tribunal found that there had been a qualifying disclosure and that the warning formed part of that disclosure, producing constructive dismissal. The Employment Appeal Tribunal accepted that the claimant had made a qualifying disclosure but held that the employer genuinely believed the claimant had committed misconduct and that the disciplinary action was for that misconduct, not for the disclosure; the EAT remitted a limited issue for further findings. The claimant appealed to the Court of Appeal; the school cross-appealed the EAT's decision to remit.

Issues framed by the court:

1. Whether the claimant's investigatory conduct could properly be treated as part of a qualifying disclosure (the "entire transaction" approach).
2. Whether, for causation under the statutory scheme, the employer's belief that the claimant had committed misconduct excluded protection even if the claimant had in fact made a qualifying disclosure.
3. Whether the EAT was correct to remit a limited issue back to the Employment Tribunal.

Reasoning and resolution:

• The Court rejected the purposive expansion adopted by the ET and held that the statutory word "disclosure" should be given its ordinary meaning; investigatory conduct aimed at establishing the reasonableness of a belief is distinct from the act of disclosing information.
• Causation requires examination of the mental processes by which the employer acted. Where the employer genuinely (even if mistakenly) disciplines for misconduct, that misconduct is the operative reason for dismissal rather than the protected disclosure communicated by other means.
• The Court agreed with the EAT that the warning was given because of the employer's belief in misconduct, not because of the disclosure, and that there was no reason to attribute ulterior motives to the employer. The appeal and the school's cross-appeal were both dismissed and the EAT's limited remit was left undisturbed.

Appeal dismissed. The Court upheld the EAT's conclusion that, although there had been a qualifying disclosure, the employer genuinely believed that the claimant had committed misconduct by entering the computer system and disciplined him for that reason; an "entire transaction" approach treating investigatory conduct as the disclosure was rejected and causation must look to the employer's reason for acting.