Taylor v University Hospitals Birmingham NHS Trust

On a striking-out application concerning an alleged protected disclosure, the question is whether the claim has no reasonable prospect of success. The tribunal must assess whether the worker could establish a reasonable belief that disclosed information tended to show a relevant legal breach or endangerment to health. A worker need not identify the precise contractual term as a lawyer would.

Information may describe omissions as well as positive acts. A worker’s use of an internal grievance process does not itself negate a reasonable belief that the employer has committed a serious contractual breach. A deposit order for one part of a claim can justify strike-out only of that part, subject to the tribunal’s powers to extend time and review.

The Claimant brought public-interest-detriment proceedings based on seven alleged protected disclosures. An Employment Judge ordered a deposit in relation to the fifth disclosure and struck out the remaining allegations. The permitted appeal concerned the sixth disclosure, an email alleging failures to investigate workplace email abuse, failures of care, and continuing anxiety attacks.

After the deposit was not paid, a second Employment Judge struck out the whole claim rather than the part concerning the fifth disclosure. The Claimant sought a review, which was refused. She then brought further appeals concerning the whole-claim strike-out, the refusal to review, and the refusal of an extension of time to appeal that refusal.

The central issues were whether the sixth disclosure could properly be struck out, and what consequences followed from the erroneous whole-claim strike-out.

1. The appeal against the first strike-out order was allowed. The sixth email contained information, rather than merely bare allegations. Information can concern failures to act. The email set out failures to investigate, contact relevant staff, address the abusive email, and protect the Claimant; it also reported continuing anxiety attacks. It was therefore capable of being a qualifying disclosure.

2. The Employment Judge applied the wrong reasoning in treating the Claimant’s reliance on the grievance procedure as inconsistent with a belief in a serious contractual breach. An employee may seek an internal remedy for an alleged breach, including a fundamental one. That course does not show that the employee lacked a reasonable belief in the breach.

3. The Employment Judge also failed to address the material question concerning health: whether the Claimant reasonably believed that the information in the email showed that the employer’s failures were endangering, or likely to endanger, her health. The reference to current anxiety attacks required that question to be considered. It was not necessary for the Claimant to identify the contractual obligation with legal precision.

4. Applying [2014] IRLR 544, the Appeal Tribunal could substitute its conclusion because only one result was reasonably possible on strike-out: the sixth-disclosure claim did not have no reasonable prospect of success. Questions whether the Claimant held the requisite reasonable belief and acted in good faith were unsuitable for resolution on the striking-out application. The strike-out was set aside and a deposit-order question was remitted because the distinct test of little reasonable prospect had not been properly addressed.

5. The later strike-out of the whole claim was erroneous. The unpaid deposit related only to the fifth disclosure, so the compulsory consequence under rule 20(4) could extend only to that part. The refusal to review also erred because it failed to consider the available review jurisdiction explained in [2005] ICR 1647.

6. The whole-claim strike-out was set aside consequentially. The matter was remitted for the Employment Tribunal to address rule 20(4), any extension of time for payment, and any review application afresh. The second and third appeals were dismissed because the order underlying them had ceased to have practical utility.

• Employment Appeal Tribunal: Allowed the appeal against the strike-out of the sixth alleged disclosure, set aside the later whole-claim strike-out consequentially, and remitted the deposit and review issues. The other appeals were dismissed as no longer necessary.

• Employment Tribunal: Employment Judge Goodier, on 25 July 2012, ordered a deposit in respect of the fifth alleged disclosure and struck out the other alleged disclosures.

• Employment Tribunal: Employment Judge Findlay later struck out the whole claim following non-payment of the deposit and refused a review. Those steps were held erroneous insofar as they affected more than the fifth disclosure and failed to address the review application.