Morgan v Royal MENCAP Society

A protected-disclosure claim should not be struck out where the worker’s asserted belief that disclosure was made in the public interest raises disputed, fact-sensitive issues. Under section 43B(1), the question is whether the worker held that belief and whether it was objectively reasonable, not whether the disclosure was in fact in the public interest.

A complaint principally concerning the worker’s own working conditions may nevertheless arguably engage a wider public interest. This may arise where the worker reasonably believes that other employees may be affected or identifies another wider public interest. Such issues ordinarily require evidence and factual findings.

The Claimant alleged that she had made protected disclosures concerning cramped working conditions which endangered her health and safety following a knee injury. She also alleged constructive unfair dismissal, automatic unfair dismissal and detriments.

At a preliminary hearing, Employment Judge Downs struck out the protected-disclosure claims without hearing evidence from the Claimant. The Judge held that the complaints were highly relevant to her personally but could not, even in her reasonable belief, be matters of public interest.

The Claimant appealed. The central issue was whether the Tribunal had erred in striking out the claims without evidence on the public-interest element of a qualifying disclosure.

1. Appeal allowed. The Employment Judge erred in striking out the protected-disclosure claims. The case was to continue, and it was considered wise not to list it before Employment Judge Downs.

2. Rule 37(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 imposes a high threshold. Strike-out without evidence may be appropriate where, even taking the claimant’s case at its highest, it cannot succeed in law. It is ordinarily inappropriate where central, fact-sensitive issues are disputed.

3. For section 43B(1) of the Employment Rights Act 1996, a worker must reasonably believe both that the disclosure is made in the public interest and that it tends to show a relevant matter. The disclosure need not actually be in the public interest. The tribunal must instead determine whether the worker’s subjective belief was reasonably held.

4. The Employment Judge did not take the Claimant’s case at its highest. Her case included an asserted belief that other employees could be affected by similar working conditions, and that the public interest was otherwise engaged. Whether those assertions were established, and whether her belief was reasonable, depended on evidence about the working conditions, other employees and her belief.

5. A health-and-safety complaint may arguably be made in the wider interests of employees generally even where the complainant is the principal person affected. The public-interest issue was therefore one of disputed fact and degree which could not properly be resolved on legal argument alone.

• Employment Appeal Tribunal: Allowed the appeal and set aside the strike-out of the protected-disclosure claims: [2016] UKEAT 0272_15_2201.
• Employment Tribunal: Employment Judge Downs, by reasons sent on 8 July 2015, struck out the protected-disclosure claims at a preliminary hearing without hearing evidence from the Claimant.