Taylor v University Hospitals Birmingham NHS Trust

A claim based on an alleged protected disclosure should not be struck out unless it has no reasonable prospect of success. Information may concern omissions as well as positive acts. A detailed account of an employer’s failures is capable of being information, rather than a bare allegation.

An employee may reasonably believe that an employer has breached a contractual obligation while still using an internal grievance procedure to seek a remedy. At the striking-out stage, disputed questions of reasonable belief and good faith will ordinarily require determination at a substantive hearing.

A deposit-related strike-out under the Employment Tribunal Rules 2004 must be confined to the part of the claim to which the deposit order relates. The Tribunal may consider an extension of time or review.

The Claimant alleged detriment for making protected disclosures. An Employment Judge ordered a deposit in respect of her fifth alleged disclosure and struck out the remaining allegations. The permitted appeal concerned the sixth disclosure, an e-mail alleging failures to investigate workplace e-mail abuse, to follow policies and to protect her health.

A later Employment Judge struck out the whole claim after the Claimant did not pay the deposit. The deposit order concerned only the fifth disclosure. The Claimant sought a review, which was refused, and brought further appeals concerning that refusal and an extension of time.

The central issues were whether the sixth disclosure had no reasonable prospect of qualifying for protection and whether the later strike-out and review decisions could stand.

1. The first appeal was allowed. The striking-out order concerning the sixth alleged disclosure was set aside. The e-mail gave factual information about alleged omissions: no investigation, no contact with a former employee, no action to address abuse, continuing remarks by colleagues and anxiety attacks. It was therefore capable of being a disclosure of information under section 43B, rather than merely a bare allegation.

2. The Employment Judge’s central reasoning on contractual obligation was wrong. An employee may believe that the employer has committed even a serious contractual breach and nevertheless pursue an internal procedure in the hope that it will be remedied. Continued reliance on the grievance process did not negate a reasonable belief in breach.

3. The Employment Judge also failed to address the correct health-and-safety question. The issue was whether the Claimant reasonably believed that the information about the employer’s alleged failures showed that her health was endangered or likely to be endangered. Her stated anxiety attacks were material to that inquiry.

4. On a striking-out application, it could not be said that the claim had no reasonable prospect of establishing a protected disclosure. It was unnecessary for the Claimant to identify the contractual term with legal precision. Questions whether she held the requisite reasonable belief and acted in good faith were not suitable for resolution at that stage. The question whether the claim had little reasonable prospect, for a deposit order, was remitted.

5. The later judgment striking out the whole claim was erroneous. Under rule 20(4) of the Employment Tribunal Rules 2004, the consequence of non-payment could extend only to the fifth disclosure, to which the deposit order related. The whole strike-out was set aside consequentially, and the matter was remitted for any fresh rule 20(4) process and review application.

6. The second and third appeals were dismissed as having no further utility because the judgment underlying them had been set aside.

• Employment Appeal Tribunal: allowed the appeal against Employment Judge Goodier’s judgment of 25 July 2012 insofar as it struck out the sixth alleged disclosure; set aside the later whole-claim strike-out consequentially; remitted deposit and review matters.
• Employment Tribunal: Employment Judge Goodier ordered a deposit for the fifth alleged disclosure and struck out the other alleged disclosures. Employment Judge Findlay later struck out the whole claim after non-payment of the deposit and refused a review.