Meares v. Medway Primary Care Trust

For a disclosure to an employer to be protected, it must be made in good faith. The statutory question is not whether the worker had mixed motives or whether one motive was predominant. A tribunal may examine motivation and may find bad faith where an ulterior motive, such as personal antagonism, explains the disclosure. It is not an error of law to reach that conclusion without separately analysing the relative strength of every motive.

Procedural fairness requires the substance of an allegation likely to affect the decision to be put to the party with a reasonable opportunity to answer it. The precise statutory expression need not be used if the factual allegation and its legal significance are clear in context.

The claimant, a nurse, appealed against an Employment Tribunal decision concerning a letter she had written to her line manager. The Tribunal found that the letter referred to bullying and harassment but was principally a vehement and antagonistic response to criticism about timekeeping. It concluded that the reference did not constitute a protected disclosure under Part IVA of the Employment Rights Act 1996.

The claimant argued that the Tribunal had failed to assess the relative strength of mixed motives and had relied on bad faith without giving her fair notice. The appeal concerned the proper approach to good faith and the procedural fairness required before making an adverse finding.

1. Appeal dismissed. The Tribunal’s findings that the claimant’s reference to bullying and harassment was not made in good faith were open to it on the evidence.
2. Under sections 43A to 43C of the Employment Rights Act 1996, a protected disclosure requires a qualifying disclosure, founded on an actual and objectively reasonable belief, made in good faith to an appropriate recipient. The claimant’s manager was treated as the employer for section 43C purposes, leaving good faith as the material issue.
3. Street v Derbyshire Unemployed Workers Centre [2004] IRLR 687 did not require a tribunal invariably to identify and weigh a predominant motive. The statutory question remained whether the disclosure was made in good faith. A tribunal may examine mixed motives and, if it does so, identify the predominant motive. But it may also conclude that the disclosure was not made in good faith because it was motivated by personal antagonism. The Tribunal’s reference to antagonism was sufficient in context to explain its conclusion.
4. The claimant had a fair opportunity to meet the allegation. Although the words “good faith” were not used in cross-examination, she was challenged directly on whether the letter was written to rebut criticism, undermine her manager and assert authority. The issue was then addressed in closing submissions, before the Tribunal began its deliberations. Fairness required the substance of the allegation to be put, not the use of particular legal terminology.
5. Lucas v Chichester Diocesan Housing Association Ltd [2005] UKEAT 0713/04/0702 was materially different because the allegation had not been put to the claimant there. Doherty v British Midland Airways Ltd [2006] IRLR 90 did not require advance notification before the hearing where a reasonable opportunity to respond was provided before decision. The appeal was dismissed. A contingent cross-appeal was dismissed because it did not arise for determination.

• Employment Appeal Tribunal: dismissed the appeal against the Employment Tribunal’s decision that the claimant had not made a protected disclosure. The contingent cross-appeal was dismissed without determination because it did not arise.