Korashi v Abertawe Bro Morgannwg University Local Health Board

In whistleblowing claims, the belief required by section 43B of the Employment Rights Act 1996 is subjective but must also be objectively reasonable in light of the discloser’s personal circumstances and knowledge. For disclosures to persons outside the employment relationship, section 43G imposes additional cumulative conditions, including reasonable belief that the information and any allegations are substantially true and good faith.

Good faith is principally a fact-sensitive question for the Employment Tribunal. A detriment claim is ordinarily brought within three months of the detriment, not the disclosure. On appeal, an Employment Tribunal’s original and supplemental reasons may be read together. Fresh evidence should normally be raised first by an application for review to the Employment Tribunal.

Dr Korashi appealed against the dismissal of multiple claims arising from his employment as a doctor. The claims concerned detriments allegedly suffered because of disclosures about patient treatment, direct race discrimination and victimisation under the Race Relations Act 1976.

The Employment Tribunal heard the claims over an extended period and dismissed them. Following an earlier procedural appeal, the Court of Appeal upheld the use of a Burns/Barke request for further reasons: [2011] EWCA Civ 187. The EAT considered the original and further reasons together, the substantive grounds of appeal, and an application to adduce evidence from later GMC proceedings.

1. Appeal dismissed. The Employment Tribunal’s judgment and further reasons, read together, adequately explained its decisions. The Tribunal had made findings on the essential statutory ingredients and was not required to decide every subsidiary condition once a primary failure was established.
2. For section 43B of the Employment Rights Act 1996, belief is centred on the discloser’s state of mind, but reasonableness imposes an objective standard. The assessment must take account of the personal circumstances, experience and knowledge of the particular discloser. An insider’s views may command respect, but the insider must consider the material reasonably available before making the disclosure.
3. The conditions in section 43G are cumulative. Good faith is a distinct requirement and the Tribunal’s assessment of it is ordinarily factual and difficult to challenge on appeal. The Tribunal was entitled to find that the disclosures to the GMC and Police were not made in good faith and that the Claimant did not reasonably believe the relevant allegations to be substantially true. The EAT’s observations that section 43G(1)(b) requires the information and each allegation to satisfy that standard were unnecessary to the result.
4. The Tribunal was entitled to find that the alleged detriments were not caused by protected disclosures, did not amount to detriments, or were out of time. Time runs from the act of detriment, not the date of the disclosure. A previous act of victimisation cannot itself constitute a new protected act founding a further victimisation claim.
5. The Tribunal’s findings concerning the theatre incident were sufficient to dispose of the direct discrimination complaint. An unspecific racist comment did not require the burden of proof to shift, and the perversity challenge failed to meet the high threshold.
6. The application to adduce new evidence was refused. The material failed the Ladd v Marshall requirements of due diligence and important influence. In future, such applications should ordinarily be made first to the Employment Tribunal by way of review, and the EAT should be slow to assess the likely impact of evidence on findings made after hearing witnesses.

• Employment Tribunal: dismissed the relevant claims in reasons registered on 17 July 2009.
• Employment Appeal Tribunal: dismissed the substantive appeal and refused the application to adduce new evidence.
• Court of Appeal: dismissed an earlier procedural appeal concerning the request for further reasons: [2011] EWCA Civ 187.