Babula v Waltham Forest College

For a disclosure to qualify for whistle-blowing protection, the worker must reasonably believe that the disclosed information tends to show a relevant statutory failure. The belief is subjective, but its reasonableness is assessed objectively. Protection does not depend on the worker correctly identifying the applicable criminal offence or legal obligation, nor on the disclosed facts actually constituting that offence or breach.

An employment tribunal must determine whether the worker held the relevant belief, whether it was reasonable and whether the disclosure was made in good faith. A factual or legal mistake does not itself defeat protection. The contrary construction in Kraus v Penna plc was wrong and should not be followed.

A college lecturer alleged that he had been constructively dismissed after reporting concerns arising from another lecturer's conduct and comments. He claimed that he reasonably believed the information tended to show incitement to racial hatred and a failure to comply with a legal obligation. He relied on sections 43A, 43B and 103A of the Employment Rights Act 1996.

The Employment Tribunal struck out the claim as having no reasonable prospect of success. Applying Kraus v Penna plc, it held that the facts could not constitute the identified offence or breach. The Employment Appeal Tribunal, in UKEAT/0635/05/SM, dismissed the lecturer's appeal.

The Court of Appeal had to decide whether the statute required an actual applicable offence or legal obligation, or whether the worker's reasonable belief that the information tended to show such a failure was sufficient.

1. Appeal allowed unanimously. Wall LJ, with whom Thomas and Thorpe LJJ agreed, held that the Employment Tribunal and Employment Appeal Tribunal had applied the wrong construction of section 43B(1) of the Employment Rights Act 1996. The strike-out was set aside and the claim remitted to a fresh Employment Tribunal for case management and adjudication.

2. The phrase “in the reasonable belief of the worker” applies in the same manner to each category in section 43B(1)(a)–(f). The worker must believe that the disclosed information tends to show one or more of the specified failures. The belief is subjective because it is the belief of the particular worker. Its reasonableness is determined objectively by the tribunal.

3. A reasonable belief may be mistaken. A worker who reasonably believes that information tends to show a criminal offence or breach of legal obligation does not lose protection merely because the belief proves wrong, or because the facts do not legally constitute the identified offence or breach. The words “tends to show”, rather than “shows”, confirm that correctness is not required. The word “likely” likewise concerns what the worker reasonably believes the information tends to show; it does not require proof that an offence or breach was objectively likely.

4. An Employment Tribunal must determine: (i) whether the worker believed the information met one or more categories in section 43B(1); (ii) whether that belief was objectively reasonable; and (iii) whether the disclosure was made in good faith. A worker who knows or believes the factual basis to be false will ordinarily be unable reasonably to believe that the information tends to show a relevant failure.

5. Kraus v Penna plc was correctly decided on its facts because the claimant lacked the required reasonable belief and had not made the necessary disclosure to one respondent. Its proposition that protection requires an actually existing legal obligation, however, imposed an unwarranted gloss on the statute. That proposition was wrong and should not be followed.

6. The construction promoted responsible whistle-blowing. Requiring workers to identify the criminal law accurately would be unrealistic and contrary to the statutory policy. Employers remain protected by the requirements of reasonableness and good faith. Applying Street v Derbyshire Unemployed Workers’ Centre [2004] EWCA Civ 964, a disclosure is not protected where an ulterior motive is its predominant or dominant purpose.

1. Court of Appeal (Civil Division): Allowed the appeal unanimously, set aside the Employment Tribunal Chairman's strike-out order and remitted the claim to a fresh Employment Tribunal.
2. Employment Appeal Tribunal: In UKEAT/0635/05/SM, dismissed the claimant's appeal from the strike-out.
3. Employment Tribunal: Struck out the claim for unfair constructive dismissal under paragraph 18(7)(b) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, holding that it had no reasonable prospect of success.