Elysium Healthcare No.2 Ltd v Ogunlami

A worker need not use technical legal language to show a reasonable belief that disclosed information tends to show a breach of a legal obligation or that disclosure is in the public interest. Those subjective beliefs may properly be inferred from the worker’s evidence and the surrounding circumstances.

A later communication may be read with an earlier disclosure where, fairly construed, it refers back to that disclosure. The question whether a protected disclosure materially influenced a detriment is one of fact for the Employment Tribunal, provided it applies the correct test.

The Claimant, a healthcare assistant employed at a hospital providing specialist treatment for detained patients, alleged detriments for making protected disclosures under section 47B of the Employment Rights Act 1996.

The Employment Tribunal upheld the claim in relation to his transfer from one hospital house to another and an email sent by the Hospital Director. It found that disclosures concerning the alleged taking of a vulnerable service user’s food, safeguarding concerns and a failure to investigate were qualifying and protected disclosures.

The employer appealed. It contended that the Tribunal had failed to find the Claimant’s subjective beliefs concerning breach of legal obligation and public interest, that the email of 2 March 2016 contained no information, and that it did not materially influence the later detrimental email.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the Claimant believed that the alleged conduct tended to show a breach of legal obligation. His evidence that the conduct breached company policy and could lead to disciplinary action was sufficient. The absence of formulaic words such as “legal obligation” did not prevent that finding. Requiring such language would elevate form over substance and impose an excessive burden on a worker.
2. The Tribunal was also entitled to infer that the Claimant believed his disclosures were in the public interest. The concern was the safeguarding of vulnerable service users and the possibility that persons in the employer’s care were being taken advantage of. It was not confined to the Claimant’s private or personal interest. The Tribunal had not impermissibly substituted its own view for the Claimant’s belief.
3. The 2 March 2016 email could properly be read with the earlier report. On a fair reading, it referred to the prior report of abuse, the meeting at which it was made, and the Claimant’s unsuccessful efforts to secure an investigation. It therefore contained sufficient information when read in that context and was a qualifying disclosure.
4. The Tribunal applied the correct material-influence test under section 47B of the Employment Rights Act 1996. The Claimant’s emails of 2 March and 8 June repeated linked safeguarding concerns, were forwarded to the Hospital Director, and each prompted a response. The finding that the protected disclosure materially influenced the detrimental email of 9 June was a permissible factual assessment. There was no basis for appellate interference.

• Employment Appeal Tribunal: The employer’s appeal was dismissed.
• Employment Tribunal at Watford: By a decision sent on 28 September 2017, with written reasons sent on 22 December 2017, the Tribunal upheld the Claimant’s section 47B claim in part and awarded £7,500 for injury to feelings.