Soh v Imperial College of Science, Technology and Medicine

For a qualifying disclosure under section 43B(1) of the Employment Rights Act 1996, the tribunal must ask whether the worker actually believed that the disclosed information tended to show a relevant failure, and whether that belief was objectively reasonable. It is not enough to ask whether the worker believed that the failure itself had occurred.

Good faith requires an overall factual assessment. A disclosure made while defending performance may still be in good faith; an ulterior motive establishes bad faith only where it entails impropriety. In unfair-dismissal cases, the tribunal must assess the employer decision-maker's reasons and their reasonableness under section 98(4), rather than substitute its own factual view.

The Claimant, a lecturer, was dismissed for gross misconduct after the Respondent treated her comments about a colleague's examination guidance as a vexatious allegation of cheating. She claimed detriment and dismissal for protected disclosures, unfair dismissal, and unpaid expenses.

The Employment Tribunal rejected the protected-disclosure claims. It found the dismissal unfair, reduced compensation by 20 per cent for contributory conduct, and awarded the claimed expenses. Both parties appealed. The central questions were whether the Tribunal had applied the statutory tests for qualifying disclosures, good faith, dismissal fairness, contributory conduct, and contractual reimbursement of expenses.

1. Appeal allowed. The protected-disclosure, unfair-dismissal, contributory-conduct and expenses issues were remitted to a freshly constituted Employment Tribunal.

2. Under section 43B(1) of the Employment Rights Act 1996, the Tribunal had asked the wrong question. It should first decide whether the worker actually believed that the information disclosed tended to show a relevant state of affairs, and then whether that belief was reasonable. A worker may reasonably pass on third-party information without believing or being able to establish that the alleged failure actually occurred. The Employment Tribunal had instead asked whether the Claimant reasonably believed that the examination system was being undermined.

3. The Employment Tribunal had nevertheless correctly approached good faith under section 43C(1). Applying Street v Derbyshire Unemployed Workers' Centre [2005] ICR 97, good faith is assessed on all the circumstances. A defensive or ulterior purpose does not necessarily amount to bad faith. However, protected disclosure as a whole had to be reconsidered because the parties’ positions concerning the Claimant’s state of mind had materially changed.

4. On unfair dismissal, the Employment Tribunal failed to apply section 98(4). It had to examine Professor Magee’s stated reasons for finding that the Claimant made a vexatious allegation and decide whether those conclusions and dismissal fell within the range of reasonable responses. Instead, it proceeded from its own view of the Claimant’s state of mind and constructed a different hypothesis of misconduct.

5. Section 123(6) requires consideration of the employee’s blameworthy conduct, its causal impact on dismissal, and the just and equitable reduction. Employer conduct may be relevant at the final evaluative stage, including where it provoked the conduct, but it cannot form a separate fourth-stage adjustment. The expenses issue also required reconsideration because the Tribunal had not addressed whether reimbursement was subject to a contractual claims procedure or time limit.

• Employment Appeal Tribunal. The appeal was allowed and the outstanding issues were remitted to a freshly constituted Employment Tribunal.
• Employment Tribunal, London Central. By a reserved judgment dated 19 March 2014, it rejected the protected-disclosure claims, upheld unfair dismissal subject to a 20 per cent contributory reduction, and awarded expenses.