Greenly v Future Network Solutions Ltd

A complaint or grievance is not excluded from whistleblowing protection merely because it is framed as an allegation. The essential question under section 43B is whether, in its factual context, it also conveys information which tends to show a relevant legal failure.

A strike-out for no reasonable prospects is a high threshold. Where the content and context of alleged disclosures are disputed, and fuller evidence may show that information was conveyed, the claim should ordinarily proceed to a full merits hearing. The tribunal must carefully consider all available material, including relevant findings in earlier proceedings.

The Claimant alleged that he suffered detriment for protected disclosures concerning changes to contractual pay, holiday pay and National Minimum Wage obligations. He relied on oral statements at a meeting and letters sent to the Respondent, as well as a complaint made to HMRC.

At a pre-hearing review, the Employment Tribunal struck out the claims based on the oral statements and letters. It held that they were complaints or grievances rather than disclosures of information. It allowed the HMRC aspect to continue.

The Claimant appealed. The central issue was whether the Tribunal could properly conclude, without oral evidence and on the material then available, that the first three alleged disclosures had no reasonable prospect of satisfying section 43B of the Employment Rights Act 1996.

1. Appeal allowed. The Employment Tribunal erred in striking out the allegations based on the meeting of 12 December 2011 and the letters of 13 February and 17 March 2012. Those allegations should proceed with the extant HMRC complaint to a full merits hearing.
2. The distinction between a disclosure of information and a mere allegation is valid. However, it is context-sensitive. A statement made in the course of a grievance or complaint may convey information, and a disclosure of information may contain an allegation. The form of the communication does not conclusively determine its character.
3. The evidence concerning the oral meeting was incomplete and disputed. Earlier tribunal findings showed that the Claimant’s witness statement did not record everything said at the meeting. The Tribunal could not decide without hearing evidence whether the Claimant had communicated only dissatisfaction and allegations, or information tending to show a breach of legal obligation.
4. The letters were also arguably capable of containing information, notwithstanding that they were grievances. Their meaning depended on their broader context and had to be assessed with the evidence as a whole.
5. Applying the high test for strike-out, the Tribunal had to consider carefully all available material, including the earlier tribunal findings. Whistleblowing claims are commonly fact-sensitive, and disputed central facts will generally be better determined at a merits hearing than by resolving selected evidence at a preliminary stage.

The Employment Tribunal remained seized of the HMRC allegation. The reinstated allegations could be determined alongside it at the full merits hearing.

• Employment Appeal Tribunal: allowed the Claimant’s appeal against the pre-hearing-review strike-out and restored the disputed protected-disclosure allegations for a full merits hearing.
• Employment Tribunal, Leeds: Employment Judge Starr, sitting alone, struck out part of the protected-disclosure claim at a pre-hearing review held on 11 March 2013; written reasons were sent on 1 May 2013.