Wharton v Leeds City Council

For a qualifying disclosure under section 43B(1)(b) of the Employment Rights Act 1996, an employee's reasonable belief in a breach of legal obligation is not necessarily defeated because the employee has not seen the underlying contract. The belief may be reasonable if the employee believed that available documents reflected or were incorporated into contractual obligations.

An Employment Tribunal must address a properly raised case that information about failure to follow documents implementing a funding arrangement tended to show breach of that arrangement. It must also address material capable of alleging deliberate concealment under section 43B(1)(f). Fact-sensitive preliminary issues concerning protected disclosures require structured case management, including adequate disclosure and evidence.

The appellant, a probationary assistant community curator, was dismissed before acquiring the qualifying service required for an ordinary unfair-dismissal claim. He instead alleged that his dismissal was automatically unfair because he had made protected disclosures under the Employment Rights Act 1996.

At a preliminary hearing, the Employment Tribunal held that none of the relied-on disclosures could be protected disclosures. It found no information tending to show breach of a legal obligation under an Arts Council England funding agreement and held that the appellant could not reasonably believe there had been such a breach because he had not seen the agreement.

The appeal concerned whether the Tribunal had failed to consider an implicit connection between the job description, funding bid, strategic plan and funding agreement; whether absence of the contract precluded reasonable belief; and whether an alleged concealment disclosure had been addressed.

1. Appeal allowed in part and remitted. The Employment Tribunal's decision could not stand on the issues concerning an alleged breach of the funding agreement and alleged concealment. The cross-appeal was dismissed, as at least two of the matters relied upon conveyed information.

2. The Tribunal had not addressed whether the job description, funding bid and strategic plan were documents intended to reflect obligations in the funding agreement. There was just sufficient material to raise the possibility that the appellant was alleging that failure to comply with those documents also showed non-compliance with a legal obligation under section 43B(1)(b) of the Employment Rights Act 1996.

3. The Tribunal erred in treating the appellant's failure to see the funding agreement as necessarily preventing a reasonable belief in breach. A reasonable belief could arise if the appellant believed, correctly or incorrectly, that the available documents were incorporated into, or reflected obligations contained in, that agreement.

4. Although the allegation of concealment was poorly pleaded, material treated by the Tribunal as particulars included a statement that wrongdoing had been covered up and an email concerning the handling of the whistleblowing complaint. The Tribunal should therefore have addressed whether the material disclosed information tending to show deliberate concealment within section 43B(1)(f).

5. The Appeal Tribunal did not decide whether a protected disclosure had in fact been made. Those issues were remitted to a differently constituted Tribunal. The Tribunal was directed in substance to ensure a structured process for disclosure and evidence before deciding these fact-sensitive issues. The appellant received £1,000 towards appeal costs under the Employment Appeal Tribunal Rules 1993.

• Employment Appeal Tribunal — allowed the appeal on specified protected-disclosure issues, dismissed other grounds and the respondent's cross-appeal, and remitted the case to a differently constituted Employment Tribunal: [2015] UKEAT 0409_14_0610.
• Employment Tribunal — at a preliminary hearing, held that none of the relied-on disclosures could amount to protected disclosures and determined that the claim should not proceed on that basis.