Williams v Brown

A disclosure under section 43B(1) of the Employment Rights Act 1996 must contain sufficiently specific factual information capable of tending to show a listed matter. The worker's subjective belief cannot cure an objectively inadequate disclosure.

An assertion that an employer tried to manipulate a recruitment process may indicate impropriety, but does not necessarily indicate criminal dishonesty. Where the disclosure does not state what conduct amounted to manipulation, contextual facts concerning public office, family recruitment rules and a relative's prospective employment do not supply the missing factual content. The disclosure was therefore not qualifying or protected.

The Claimant, a senior adviser to the Respondent Assembly Member, was suspended and later dismissed for conduct. He alleged that a sentence in his letter of 11 December 2016 was a protected disclosure. It stated that the Respondent had tried to manipulate a recruitment process so that her brother could be employed.

The Employment Tribunal held that the sentence disclosed information and was in the public interest, but lacked sufficient factual content and specificity to tend to show a criminal offence under section 43B(1)(a) of the Employment Rights Act 1996. It dismissed the detriment and automatic unfair dismissal claims.

The Claimant appealed. The Respondent cross-appealed on causation. The central issue was whether the sentence, read in its context, was capable of tending to show criminal conduct.

1. Appeal and cross-appeal dismissed. The Employment Tribunal was entitled to conclude that the alleged disclosure was not a qualifying disclosure and therefore not a protected disclosure.

2. A qualifying disclosure under section 43B(1) of the Employment Rights Act 1996 requires a disclosure of information with sufficient factual content and specificity to be capable of tending to show one of the listed matters. The worker's belief and the objective capability of the information to show the matter are distinct questions. If the content cannot reasonably be construed as tending to show a criminal offence, the claim fails irrespective of the worker's subjective belief or the satisfaction of other conditions.

3. The Tribunal correctly applied that threshold. It was entitled to regard the word manipulate as pejorative and suggestive of underhand conduct, without necessarily or obviously connoting criminal dishonesty. The surrounding facts did not establish otherwise. The independent recruitment procedure had been followed, Assembly Members could tailor job descriptions, and there was no absolute prohibition on employing close family members.

4. For an alleged offence under section 4 of the Fraud Act 2006, the essential missing feature was factual information identifying conduct said to amount to dishonest abuse of position. The letter did not state any particular act of manipulation, although the later particulars of claim alleged several specific acts. Context could not replace that missing factual content.

5. The Tribunal was not obliged to determine whether the disclosure caused the suspension or dismissal once it had concluded that no protected disclosure had been made. That conclusion was fatal to both claims.

• Employment Appeal Tribunal: dismissed the Claimant's appeal and the Respondent's cross-appeal.
• Employment Tribunal: dismissed the detriment and automatic unfair dismissal complaints after finding that the letter did not contain a qualifying disclosure.