Babula v Waltham Forest College

The Court of Appeal considered the construction of the "reasonable belief" requirement in the protected disclosure provisions of Part IVA of the Employment Rights Act 1996, particularly sections 43A, 43B(1)(a) and 43B(1)(b) and section 103A. The court held that a worker's belief is a subjective belief which must be objectively reasonable: protection is available where the worker reasonably believes that the information disclosed tends to show one of the matters in section 43B(1), even if that belief turns out to be wrong as a matter of law. The court rejected the narrower gloss in Kraus v Penna that, for section 43B(1)(b), the legal obligation relied upon must in fact exist as a precondition to protection, and it held that Kraus was wrongly stated as a general rule though correctly decided on its own facts.

The appellant's claim had been struck out by the Employment Tribunal Chairman and dismissed by the Employment Appeal Tribunal on the basis that the pleaded facts could not give rise to the criminal offence or legal obligation alleged; the Court of Appeal allowed the appeal, set aside the strike-out and remitted the claim to a fresh Employment Tribunal for case management and adjudication.

Background and parties. The appellant, a lecturer employed by Waltham Forest College between January and August 2004, alleged that after discovering and reporting concerning conduct by a predecessor lecturer (including a reported statement wishing for a "September 11" type incident in London) he was constructively dismissed. He asserted that his disclosure amounted to a protected disclosure under Part IVA of the Employment Rights Act 1996 and that his dismissal was automatically unfair under section 103A.

Procedural posture. The Employment Tribunal Chairman struck out the unfair constructive dismissal claim as having no reasonable prospect of success; the Employment Appeal Tribunal (His Honour Judge Peter Clark) dismissed the appellant's appeal. The Court of Appeal received the appellant's appeal with permission.

Nature of the claim and relief sought. The appellant sought to proceed with a claim of automatic unfair dismissal under ERA 1996 section 103A, alleging that he had made protected disclosures (section 43A read with section 43B(1)(a) and (b)). The specific legal question concerned the meaning and scope of the phrase "in the reasonable belief of the worker making the disclosure" in section 43B(1): whether the worker must point to an actual criminal offence or legally binding obligation given the facts, or whether a reasonable belief that the facts tend to show such an offence or obligation suffices.

Issues framed by the court.

• Whether "reasonable belief" in section 43B(1) requires the existence of the legal obligation or criminal offence relied upon, or whether the worker's reasonable belief that the information he disclosed tends to show such a matter is sufficient.
• How to reconcile earlier EAT authorities (notably Darnton, Kraus and Bolton School) on the role of factual accuracy and the test of reasonable belief.

Reasoning and decision. The court adopted a combined subjective-objective approach: the belief required by section 43B(1) is the particular worker's belief (subjective) but it must be objectively reasonable. The court endorsed Darnton's approach that a worker's belief may be reasonably held even if factually incorrect and emphasised that section 43B speaks of information that "tends to show" not information that necessarily "shows". The court found that the EAT in Kraus was correct on its facts but that the dictum in paragraph 29 of Kraus (that a worker cannot claim protection by believing in a legal obligation which in law does not exist) imposed an unwarranted gloss and was wrong as a general proposition. The Court of Appeal allowed the appeal, held that the appellant's asserted belief could be a qualifying disclosure if reasonably held, and remitted the matter to a fresh Employment Tribunal for further case management and adjudication. The court did not decide the merits of the underlying unfair dismissal claim.

Wider context. The court noted the public policy purpose of the statutory scheme to encourage responsible whistle-blowing and observed that requiring technical legal accuracy from a lay worker would frustrate that purpose; protections and safeguards (good faith, other statutory conditions) remain available to guard against abuse.

Appeal allowed. The Court of Appeal held that under ERA 1996 Part IVA the phrase "in the reasonable belief of the worker" requires a subjective belief held by the worker which must be objectively reasonable. A worker need not be legally correct about the existence of a criminal offence or legal obligation so long as he reasonably believes that the information disclosed tends to show one of the matters in section 43B(1). The EAT’s restrictive statement in Kraus v Penna that the worker must point to an actual legal obligation was rejected as an incorrect general proposition though Kraus was right on its facts. The Chairman’s strike-out was set aside and the claim remitted to a fresh Employment Tribunal for further case management and determination on the merits.

Appeal from His Honour Judge Peter Clark, Employment Appeal Tribunal (UKEAT/0635/05/SM) dismissing the appellant's challenge to an Employment Tribunal Chairman's strike-out order of 5 July 2005. The Court of Appeal ([2007] EWCA Civ 174) allowed the appeal and remitted the claim to a fresh Employment Tribunal.