Millbank Financial Services Ltd v Crawford

A communication may be a qualifying disclosure where it conveys sufficiently specific facts, including facts about omissions. It need not be confined to positive acts. A detailed account of the factual basis for an employee’s complaint is capable of being “information”, rather than a mere allegation or statement of position.

Once information is shown, whether the worker reasonably believed that it tended to show breach of a legal obligation will commonly require evidence. Such an issue is generally unsuitable for strike-out. A tribunal deciding whether to impose a deposit must give reasons which address the little reasonable prospect of success test.

The claimant was dismissed during an extended probationary period. She alleged automatic unfair dismissal under the whistleblowing provisions of the Employment Rights Act 1996, relying principally on a detailed letter sent to senior management on 15 October 2012.

The Employment Judge refused the employer’s application to strike out the claim and also refused to make a deposit order. The employer appealed, contending that the letter contained no “information” for the purposes of section 43B and that the Employment Judge gave inadequate reasons for refusing a deposit.

The central issues were whether the letter was capable of containing a qualifying disclosure and whether the deposit application had been properly determined.

1. The appeal was allowed in part. The Employment Judge’s refusal to strike out the automatic unfair dismissal claim was upheld. The refusal to make a deposit order was set aside and remitted to the Employment Tribunal.

2. The distinction in Cavendish Munro Professional Risk Management Ltd v Geduld, [2010] ICR 325, is between a bare allegation, assertion or statement of position and the conveyance of facts. Facts capable of amounting to information include omissions as well as positive acts.

3. The letter went beyond a grievance or assertion. It gave a detailed factual account of, among other matters, the absence of feedback during probation, the lack of consultation, the single late meeting, and the absence of a plan for the probation extension. The Employment Judge was therefore entitled to find that it might contain information.

4. Under section 43B(1) of the Employment Rights Act 1996, the remaining questions concerned what the claimant believed, why she believed it, and whether that belief was reasonable. Her case that the information tended to show a serious contractual breach required evidence. It could not sensibly be struck out for want of reasonable prospects.

5. The Employment Judge gave no significant reason for refusing a deposit. Reasons, though not lengthy, had to explain why the claim did or did not have little reasonable prospect of success. The Appeal Tribunal declined to make the order itself because the issue was capable of decision either way. It remitted the deposit application, preferably to be dealt with alongside the claimant’s outstanding amendment application, to any Employment Judge.

6. Observing additionally, the Tribunal accepted that, before the public-interest amendment, a disclosure tending to show breach of the worker’s own contract could fall within section 43B.

• Employment Appeal Tribunal: allowed the employer’s appeal only as to the inadequately reasoned refusal of a deposit order; upheld the refusal to strike out and remitted the deposit issue.
• Employment Tribunal: Employment Judge Welch, on 2 May 2013, refused both strike-out and a deposit order.