Goode v. Marks and Spencer Plc

A protected disclosure requires information which, in the worker’s reasonable belief, tends to show a breach of a legal obligation. An expression of dissatisfaction or opinion about proposed changes to a discretionary redundancy scheme is insufficient unless the surrounding information reasonably supports such a belief.

For disclosure to a third party under section 43G, the worker must satisfy the statutory conditions, including having previously disclosed substantially the same information to the employer where that condition is relied upon. The statutory consultation duty under section 188 of the Trade Union and Labour Relations Consolidation Act 1992 arises only where there is a proposal to dismiss at least 20 employees as redundant within 90 days.

Mr Goode appealed against Employment Tribunal decisions rejecting his claims that disclosures to his line manager and to The Times were protected disclosures, and dismissing his unfair and wrongful dismissal claims.

The disclosures concerned proposed reductions to Marks and Spencer’s discretionary enhanced redundancy terms. The Tribunal held that the communications did not disclose information tending to show non-compliance with a legal obligation. It also held that the requirements for an external disclosure under section 43G were not satisfied.

The central issues were whether the communications contained qualifying information, whether substantially the same information had previously been disclosed to the employer, and whether the proposals engaged the statutory consultation duty.

The appeal was dismissed. The Employment Tribunal was entitled to reject the claim under section 103A of the Employment Rights Act 1996.

1. The Raichura disclosure. The statement that the proposals were disgusting, together with an inquiry about Mr Raichura’s view, was at most an expression of the appellant’s state of mind. Applying Cavendish Munro Professional Risk Management Ltd v Geduld, the Tribunal was entitled to distinguish information from a statement of position or allegation. Even read with the 11 July proposal, the communication did not support a reasonable belief that the employer was likely to breach a legal obligation.
2. The section 43G condition. The disclosure to The Times could not satisfy section 43G(2)(c)(i) if the earlier communication was not a qualifying disclosure and did not contain substantially the same information. If the two communications contained substantially the same information, the earlier communication would itself have been qualifying; if not, the statutory condition was unmet.
3. The Times disclosure. The email contained factual information about proposed changes, their intended date, and consultation with BIG, together with opinions about possible redundancies and the likely weakness of the representatives. Nothing disclosed suggested arbitrary, capricious, irrational or bad-faith conduct in operating a discretionary scheme. Nor did it suggest a proposal to dismiss 20 or more employees as redundant.
4. Section 188 consultation. The obligation under the Trade Union and Labour Relations Consolidation Act 1992 was not engaged. GMB v Man Bus and Truck UK Ltd was distinguishable because that case involved a proposal to dismiss employees and re-employ them on harmonised terms.
5. The Tribunal’s treatment of the reasonableness requirement under section 43G(1)(e) lacked sufficient rigour. That criticism did not affect the result because the other grounds independently disposed of the appeal.

• Employment Appeal Tribunal: dismissed the appeal against the Employment Tribunal’s rejection of the protected-disclosure, unfair-dismissal and wrongful-dismissal claims.
• Employment Tribunal: held that the communications to Mr Raichura and The Times were not qualifying or protected disclosures and rejected the claims.