Kilraine v London Borough Of Wandsworth

A protected disclosure must meet the statutory requirements. The question is whether the worker disclosed information tending to show a relevant failure. An allegation may include information, so tribunals should not treat those descriptions as mutually exclusive. Vague assertions of inappropriate conduct will not suffice.

A disciplinary suspension will ordinarily be an act extending over a period for limitation purposes under the Employment Rights Act 1996. A time-limit error will nevertheless be immaterial where the tribunal has made an unchallenged and sustainable finding that the suspension was unrelated to the protected disclosure.

The Employment Appeal Tribunal will permit a new point only exceptionally. A conscious forensic decision by a represented party not to advance it below will ordinarily preclude reliance on it on appeal.

The Claimant, formerly an Education Achievement Project Manager employed by the Respondent local authority, alleged detriments and dismissal for making four protected disclosures under the Employment Rights Act 1996.

The Employment Tribunal held that the first alleged disclosure was not protected, the second was protected but the alleged suspension detriment was out of time and unrelated to it, and the third and fourth were not qualifying disclosures. It dismissed the claims.

On appeal, the Claimant sought to advance unargued points concerning disclosure to a person other than the employer and the continuing character of suspension. She also challenged the conclusions on whether the third and fourth communications were qualifying disclosures. The central issues were whether the new points should be entertained and whether any error could affect the result.

1. Appeal dismissed. The Employment Appeal Tribunal declined to permit the Claimant to advance a new argument that the first disclosure fell within section 43C(1)(b)(ii) of the Employment Rights Act 1996. The argument pursued below under section 43C(2) was a conscious and developed forensic choice by an represented party. There were no exceptional circumstances justifying departure from finality.

2. The Tribunal had erred in treating the suspension as a one-off act for limitation purposes. A disciplinary suspension will ordinarily be an act extending over a period under section 48(4). However, the error could not affect the result. The Tribunal had found as fact that the suspension had nothing whatsoever to do with the protected disclosure. That finding was open to it. The new limitation point had also not been articulated below, and the EAT would not exercise its discretion to admit it.

3. The statutory requirement is a disclosure of information. The distinction between information and allegation is not itself statutory, and a communication may be both. Tribunals must therefore avoid treating the two as mutually exclusive. The third communication was nevertheless too vague to convey relevant information or to tend to show a matter within section 43B(1).

4. The fourth communication contained information about what was said at a safeguarding meeting. It still was not a qualifying disclosure. The cited safeguarding provisions imposed broad duties to make arrangements. Nothing in the communication tended to show a breach of those arrangements or an identified legal duty owed by the manager. The Tribunal was also entitled to find that the Claimant had not shown a reasonable belief in such a duty.

• Employment Appeal Tribunal: Appeal dismissed.
• Employment Tribunal, London (South): Decision sent to the parties on 25 September 2014. It rejected the protected-disclosure claims after determining the status of the four alleged disclosures and the limitation issue.