Ibrahim v HCA International Ltd

For a protected disclosure under section 43B of the Employment Rights Act 1996, the tribunal must separately ask whether the worker believed, when making it, that it was in the public interest and, if so, whether that belief was reasonable. A motive to clear the worker’s name does not answer the first question. The tribunal must assess belief, not merely motive, and should not treat the absence of express contemporaneous language as conclusive. If the evidence and findings do not adequately address the issue, the appellate court may remit the matter for further hearing rather than seek amplification of the tribunal’s reasons.

Samir Ibrahim, an Arabic interpreter, brought whistleblowing and other employment-related claims after complaining about alleged rumours that he had breached patient confidentiality and about a manager’s conduct. The Employment Tribunal rejected the claims, finding that the disclosures were aimed at clearing his name and were not in the public interest.

On appeal in UKEAT/0105/18/BA, the Employment Appeal Tribunal accepted that an allegation of defamation could fall within section 43B(1)(b), but upheld the outcome because it considered that there was no subjective public-interest belief. The central issue before the Court of Appeal was whether the tribunal had separately addressed subjective belief and reasonableness, and whether any evidential gap could be cured without remission.

1. Appeal allowed. Bean LJ gave judgment, with Baker LJ and Dingemans LJ agreeing. The whistleblowing preliminary hearing was remitted to the Employment Tribunal.
2. Statutory test. Section 43B of the Employment Rights Act 1996 requires a two-stage inquiry. The tribunal must first determine whether the worker believed, at the time of disclosure, that it was in the public interest. If so, it must determine whether that belief was reasonable. The approach in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2017] EWCA Civ 979 also establishes that the worker’s predominant motive is not the same as the required subjective belief. A motive to clear one’s name therefore does not determine whether the worker held the necessary belief. (See paras [15]–[17].)
3. Employment Tribunal’s reasoning. The finding that the disclosures were made with a view to clearing the claimant’s name addressed motive, not subjective belief. The absence of contemporaneous references to the public interest was material evidence against the claimant, but it did not dispose of the issue. The Employment Tribunal had to ask directly what the claimant believed when making the disclosures and then assess the reasonableness of that belief. (See paras [23]–[26].)
4. Remission. The Burns v Royal Mail Group plc [2004] ICR 1103 and Barke v SEETEC Business Technology Centre Ltd [2005] ICR 1373 procedure for seeking amplification of tribunal reasons was available in principle, but was unsuitable because it was unclear whether the critical issue had been adequately covered in evidence. There was therefore no alternative to remission. (See para [27].)
5. Tribunal to hear the remitted issue. Applying the considerations arising from Sinclair Roche & Temperley v Heard and Fellows [2004] IRLR 763, the case was not one involving a fatally flawed decision, apparent partiality or pre-judgment. Professionalism, proportionality and efficiency favoured remission to the same Employment Judge, if possible. The existing factual findings in paragraphs 43–45 were binding, and the claimant was permitted to give further evidence on whether he held a subjective public-interest belief and, if so, whether it was reasonable. (See paras [28]–[30].)

1. Court of Appeal (Civil Division). In [2019] EWCA Civ 2007, the appeal was allowed and the whistleblowing preliminary hearing was remitted to the Employment Tribunal, preferably before Employment Judge Ayre.
2. Employment Appeal Tribunal. In UKEAT/0105/18/BA, the EAT accepted that the statutory legal-obligation limb could encompass an allegation that the claimant was being defamed, but upheld the conclusion that the claimant lacked a subjective belief that his disclosures were in the public interest.
3. Employment Tribunal. By a reserved judgment dated 28 September 2017, the ET rejected the whistleblowing and other claims.