Kirby v Glasgow Caledonian University

For a qualifying disclosure under section 43B(1)(b) of the Employment Rights Act 1996, a worker must communicate a reasonable belief that a person has failed, is failing, or is likely to fail to comply with a legal obligation. Suspicion, or an uncommunicated private belief, is insufficient. The worker need not precisely identify the obligation or the precise breach if the disclosure sufficiently conveys alleged unlawfulness.

Under section 47B, a protected disclosure need only materially influence the employer’s treatment. It need not be the sole, principal or real cause. An error in applying that test, or in allocating the burden of proof, will not justify intervention where the Tribunal’s positive findings establish that the disclosure had no influence on the treatment.

The Claimant, formerly a university professor, alleged that he suffered detriments after reporting a colleague’s allegedly improper funding application. He also claimed constructive unfair dismissal after resigning during Employment Tribunal proceedings.

The Employment Tribunal rejected the protected-disclosure, disability-discrimination and constructive-dismissal claims in a judgment dated 15 March 2018. On appeal, the Claimant challenged the Tribunal’s treatment of several alleged disclosures under section 43B(1)(b) of the Employment Rights Act 1996, its approach to causation and burden of proof for detriment, and its conclusions on mutual trust and confidence.

The central questions were whether earlier communications were protected disclosures, whether protected disclosures materially influenced any detriment, and whether a workplace vote of no confidence entitled the Claimant to treat the contract as repudiated when he resigned much later.

1. Appeal dismissed. The Employment Tribunal did not apply a legally erroneous requirement that disclosures be expressed in conclusive terms. Its references to what the Claimant had “concluded” meant that he had not reached, or communicated, a belief that his colleague had acted unlawfully.

2. Disclosures 2, 5, 6 and 7 did not satisfy section 43B(1)(b) of the Employment Rights Act 1996. The Claimant either had not conveyed a belief in breach of a legal obligation or lacked sufficient information for such a belief to be reasonable. A disclosure must communicate the belief to the employer. A worker need not precisely articulate the obligation or manner of breach, but the communication must sufficiently identify alleged unlawful conduct. Disclosures 9–11 did so by invoking the University’s financial-misconduct policy.

3. The Tribunal erred by using the Aspinall formulation for causation. The binding test in NHS Manchester v Fecitt, [2012] IRLR 64, is whether the protected disclosure materially influenced the treatment, in the sense of more than trivially. The error was immaterial. The Tribunal’s factual findings established that the relevant treatment resulted from a pre-existing breakdown in workplace relationships, operational considerations, or matters unconnected with the disclosures.

4. Although the statutory burden required the employer to show the ground for its treatment, the Tribunal’s misstatement caused no injustice. It had extensive evidence and made positive findings about the actual reasons for the treatment.

5. The participation of the Claimant’s colleagues in an informal vote of no confidence could amount to a repudiatory breach of the implied term of mutual trust and confidence and was attributable to the Respondent. However, the Claimant did not resign until 2017, did not resign in response to that event, and did not accept that repudiation. The constructive-dismissal claim therefore failed. The Tribunal was also entitled, on its alternative reasoning, to regard the Claimant’s conduct causing the dysfunctional relationship as some other substantial reason under section 98(1) of the Employment Rights Act 1996.

• Employment Appeal Tribunal: Appeal dismissed: [2019] UKEAT 0021_18_3004.
• Employment Tribunal: By judgment dated 15 March 2018, entered on the Register on 21 March 2018, dismissed the protected-disclosure, disability-discrimination and constructive-unfair-dismissal claims.