Bolton School v Evans

At the permission stage, the Court of Appeal identified an arguable question under the Employment Rights Act 1996: whether disciplinary action connected with a protected disclosure was nevertheless taken on the grounds that the worker had made a protected disclosure. That inquiry may involve causation, even where the employer genuinely regards the conduct as misconduct. Conduct involved in making or communicating a disclosure cannot necessarily be separated from the disclosure without examining that statutory question. Permission was granted because the ground had a real prospect of success and the issue was arguably one of general public importance. The merits were not decided.

A schoolteacher received a formal warning after testing his employer’s information-technology system and exposing its vulnerability to unauthorised access. He resigned after an unsuccessful internal appeal and brought Employment Tribunal proceedings, alleging detriment and constructive dismissal for making a protected disclosure under the Employment Rights Act 1996, with an alternative claim for ordinary constructive unfair dismissal.

The Employment Appeal Tribunal dismissed the employer’s appeal on two grounds but allowed it on the ground that the conduct was an independent act of indiscipline rather than part of the protected disclosure. The ordinary constructive dismissal claim was remitted. The central issue before the Court of Appeal was whether that distinction was legally sustainable.

Permission to appeal granted. The Court of Appeal did not determine the merits of the whistleblowing or constructive-dismissal claims.

1. The statutory issue under sections 47 B and 103A of the Employment Rights Act 1996 was whether the detriment or dismissal occurred on the grounds that the worker had made a protected disclosure. Lord Justice Sedley considered that this was properly arguable as a question of causation, although the Employment Appeal Tribunal had rejected that description.
2. The Employment Appeal Tribunal had accepted that there was a protected disclosure and had rejected the argument that the employee lacked sufficient legal knowledge reasonably to believe that the conduct tended to show a breach of the Data Protection Act 1998. Its remaining conclusion treated the testing of the network and related disruption as independent misconduct. That conclusion was arguably vulnerable because it might not sit readily with the reasons for rejecting the other two grounds.
3. The judgment recorded the statutory scheme under which information need only be reasonably believed to tend to show a failure to comply with a legal obligation. The information may be inaccurate without removing protection, provided the belief is reasonable. The court did not finally construe those provisions.
4. The ordinary constructive unfair-dismissal claim under section 98 of the Employment Rights Act 1996 had been remitted for further findings. The parties were invited to agree that the remitted issue should abide the Court of Appeal’s decision, failing which directions could be sought.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 710, Lord Justice Sedley granted permission to appeal. The substantive appeal remained unresolved.
2. Employment Appeal Tribunal: The employer’s appeal was dismissed on the alleged absence of a protected disclosure and on the employee’s alleged lack of sufficient legal knowledge. It was allowed on the ground that the relevant conduct was an independent act of indiscipline. The ordinary constructive-dismissal claim was remitted for further findings.