Easwaran v St George's University of London

A qualifying disclosure requires a disclosure of information which the worker reasonably believes tends to show a statutory matter, such as danger to health and safety or breach of a legal obligation. Employment tribunals should analyse those elements separately: whether information was disclosed, what the worker believed it tended to show, and whether that belief was reasonable. A tribunal may find that a worker genuinely held a belief, but that the belief was unreasonable. An unsupported assertion that cold conditions might cause pneumonia did not satisfy the reasonableness requirement where the evidence did not establish such a risk.

The appellant, a medical demonstrator, appealed against the dismissal of his claim under section 48(1A) of the Employment Rights Act 1996. He alleged that a letter complaining about cold conditions and ventilation in a dissecting room was a protected disclosure under section 43B. The Employment Tribunal found that the letter contained no qualifying disclosure and dismissed the claim without determining the remaining issues.

The appeal concerned whether the letter disclosed information, whether the appellant believed that it tended to show danger to health and safety or breach of a legal obligation, and whether that belief was reasonable.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude that the letter did not contain a qualifying disclosure.
2. The statutory questions should be kept distinct: whether information was disclosed; whether the worker believed that it tended to show one of the matters specified in section 43B; and whether that belief was reasonable. Tribunals should analyse each element separately, particularly when applying a complex statutory provision.
3. The letter did contain information, including that the dissecting room was very cold and that the technician would not close the windows because of the formalin fumes. If the Tribunal had found otherwise, that would have been an error of law.
4. The Tribunal had not clearly found that the appellant lacked a genuine belief that the conditions created a health and safety risk. The appeal proceeded on the basis that he may have held such a belief.
5. The decisive finding was that any such belief was unreasonable. The Tribunal had heard relevant evidence and found no evidence that the temperature had reached a level dangerous to staff or students. The appellant’s assertion that he might contract pneumonia was unsupported, and the Tribunal was entitled to regard his position as extreme and unjustifiable.
6. The medical memorandum, internet material and later incident involving a student did not require a different conclusion. They did not establish that the winter conditions were likely to cause pneumonia or otherwise endangered health and safety.
7. The application to adduce temperature notes as fresh evidence was refused. The notes had been available before the Employment Tribunal hearing and could have been produced with reasonable diligence. In any event, they were unlikely to affect the result.

• Employment Tribunal: The claim under section 48(1A) of the Employment Rights Act 1996 was dismissed. Written reasons were sent on 27 January 2010.
• Employment Appeal Tribunal: The appeal against that decision, and the appeal concerning fresh evidence, were dismissed.