Ibrahim v HCA International Ltd

The Court of Appeal allowed the appellant's appeal in part and remitted the preliminary hearing on the whistleblowing claim to the Employment Tribunal for further hearing on the limited issue of whether the claimant had a subjective belief that his disclosures were made in the public interest and, if so, whether that belief was reasonable. The court applied the two-stage approach to the public interest element derived from Chesterton (first whether the worker subjectively believed the disclosure to be in the public interest; second whether that belief was reasonable) and held that the Employment Tribunal had not adequately addressed the claimant's subjective belief. The court treated the factual findings in paragraphs 43–45 of the ET judgment as binding, allowed the claimant to give further evidence on the limited issue, and directed that the rehearing take place before the same judge if possible.

This is an appeal from the Employment Appeal Tribunal and ultimately from a preliminary Employment Tribunal hearing in which the claimant, a long-serving interpreter, had multiple claims including unfair dismissal, wrongful dismissal, arrears of wages, sex discrimination and whistleblowing under section 43B of the Employment Rights Act 1996. The whistleblowing claim concerned grievances of 15 and 22 March 2016 in which the claimant complained about rumours that he had breached patient confidentiality and about unprofessional conduct by a manager.

The ET (EJ Ayre) rejected all claims, finding the claimant was not an employee and, in relation to the whistleblowing claim, that his disclosures did not tend to show a breach of legal obligation or miscarriage of justice and were not made in the public interest but were made to clear his name. The claimant appealed to the EAT. The EAT accepted as a matter of law that an allegation of being defamed could fall within s 43B(1)(b), but upheld the ET's factual conclusion that the claimant did not hold a subjective belief that his disclosure was in the public interest.

The Court of Appeal (Bean LJ, Baker LJ and Dingemans LJ) considered the guidance in Chesterton regarding the two-stage test for the public interest element: (i) whether the worker believed at the time the disclosure was in the public interest and (ii) whether that belief was reasonable. The court concluded that, in light of Chesterton, the ET should have directly asked the claimant whether he believed he was acting in the public interest and, if necessary, made explicit findings on that question. The ET’s statement that the disclosures were made "with a view to the claimant clearing his name" addressed motive but did not satisfactorily address subjective belief. Because the record did not show that the critical issue was adequately covered at the ET hearing, the Court of Appeal remitted the limited issue back to the ET for further hearing, directing that the factual findings in paragraphs 43–45 remain binding and allowing the claimant to give further evidence limited to the question of subjective belief and its reasonableness. The court also considered and declined to order amplification of the ET's reasons under Burns/Barke procedure, preferring remission.

The appeal was allowed and the Court of Appeal remitted the preliminary whistleblowing hearing to the Employment Tribunal for further determination of whether the claimant subjectively believed his disclosures were made in the public interest and, if so, whether that belief was reasonable. The court concluded the ET had not adequately addressed the subjective-belief limb of the Chesterton two-stage test and that the gap could not be satisfactorily filled on the existing material.

This matter was heard in the Employment Tribunal by Employment Judge Ayre (preliminary hearing, reserved judgment 28 September 2017) where all claims were rejected. The claimant appealed to the Employment Appeal Tribunal. The appeal proceeded to a full hearing before Judge Stacey who accepted the legal point that an allegation of defamation can fall within s 43B(1)(b) but upheld the ET's factual finding that the claimant lacked a subjective belief that his disclosures were in the public interest. Permission to appeal to the Court of Appeal was granted by Longmore LJ on 17 April 2019. The Court of Appeal allowed the appeal on 19 November 2019 and remitted the whistleblowing preliminary hearing to the ET for further hearing on the narrow issue of subjective belief and reasonableness.