Taylor v University Hospitals Birmingham NHS Trust

On a strike-out application concerning protected disclosures, the question is whether the claim has no reasonable prospect of success. A communication may disclose information by describing omissions and their consequences, rather than merely making allegations. An employee may reasonably believe that an employer has breached a contractual obligation or endangered health without identifying the precise legal duty.

Continuing to use an internal grievance process does not negate a reasonable belief that a serious contractual breach has occurred. Questions whether the worker held the requisite reasonable belief and acted in good faith will ordinarily require determination at a full hearing. A deposit-related strike-out may extend only to the part of the claim to which the deposit order relates.

The Claimant brought proceedings for detriment for making protected disclosures. An Employment Judge ordered a deposit in respect of the fifth alleged disclosure and struck out the remaining alleged disclosures. The Claimant pursued the appeal only in relation to the sixth disclosure, an email concerning the employer's handling of her grievance, alleged failures to investigate, duty of care, and anxiety attacks.

After the deposit was not paid, a further Employment Judge struck out the whole claim and later refused to review that decision. The Claimant brought three appeals: against the original strike-out, the later strike-out, and refusal of an extension of time to appeal the refusal to review. The central issues were whether the sixth disclosure had no reasonable prospects of being protected, and the consequences of the erroneous whole-claim strike-out.

1. The first appeal was allowed. The order striking out the claim based on the sixth disclosure was set aside. The email contained information, including information about omissions: no investigation, no contact with relevant persons, no action to address alleged abuse, and continuing anxiety attacks. It was therefore more than a bare allegation under Cavendish Munro Professional Risks Management v Geduld [2010] IRLR 38.

2. The Employment Judge had applied the wrong reasoning in treating the Claimant's reliance on the grievance procedure as inconsistent with belief in a breach of trust and confidence. An employee may seek an internal remedy for even a serious contractual breach. The relevant question was whether she reasonably believed that the disclosed information tended to show breach of a legal obligation or endangerment to health.

3. The Employment Judge also failed to address whether the Claimant reasonably believed that the employer's alleged failures were endangering her health. The email was capable of supporting such beliefs. It was unnecessary for the Claimant to identify the particular contractual term as a lawyer would. Reasonable belief and good faith were not suitable for resolution on this strike-out application.

4. Applying the substitution principle in Jafri v Lincoln College [2014] IRLR 544, only one conclusion was possible: the sixth-disclosure claim had reasonable prospects of success. A fresh decision was nevertheless required on whether it had little reasonable prospect of success for deposit-order purposes. That issue was remitted.

5. The later judgment striking out the whole claim was also set aside consequentially. A failure to pay a deposit ordered only in respect of one alleged disclosure could not justify striking out the entire claim under rule 20(4) of the Employment Tribunal Rules 2004. The matter was remitted so that the Tribunal could address any fresh strike-out, extension-of-time, or review application.

6. The second and third appeals were dismissed as having no further utility. The Judge stated, alternatively, that the second appeal had been premature, but that the exceptional circumstances would have justified extending time for the third appeal.

• Employment Appeal Tribunal: Allowed the appeal against the Employment Judge's strike-out of the sixth disclosure; set aside the later whole-claim strike-out consequentially; remitted deposit and review matters to the Employment Tribunal.
• Employment Tribunal: Employment Judge Goodier, by judgment dated 25 July 2012, ordered a deposit concerning the fifth disclosure and struck out the other disclosures. Employment Judge Findlay, by judgment dated 23 October 2012, struck out the whole claim following non-payment of the deposit, and later refused review.