Arthur v Hertfordshire Partnership University NHS Foundation Trust

A disclosure may be protected even where the recipient already knows the information, because section 43L(3) of the Employment Rights Act 1996 treats disclosure in that situation as bringing the information to that person’s attention.

A protected disclosure need only be a material influence on the detriment; it need not be its principal reason. An Employment Tribunal must not strike out a disputed whistleblowing claim by assessing its likely evidential outcome rather than applying the strict test of no reasonable prospect of success.

By contrast, a deposit order requires only little reasonable prospect of success. Under that lower threshold, the Tribunal may provisionally assess the likelihood that essential facts will be proved and the credibility of assertions, provided it has a proper basis for doing so.

The Claimant, formerly the Respondent’s Head of Medical Staffing, alleged that she suffered detriments and was dismissed because of protected disclosures concerning medical clearances and a data breach.

The Employment Tribunal at Watford struck out the protected-disclosure claims as having no reasonable prospect of success. Alternatively, it decided that the Claimant should pay two deposits of £250 under rule 39 of the Employment Tribunal Constitution and Rules of Procedure Regulations 2013.

The Respondent did not resist the appeal against strike-out, but sought to uphold the alternative deposit orders. The central issues were whether the Tribunal had applied the proper protected-disclosure and strike-out tests, and whether its separate assessment under the deposit-order jurisdiction was lawful.

1. Appeal allowed in part. The Employment Appeal Tribunal set aside the strike-out of the protected-disclosure detriment and dismissal claims, but dismissed the appeal against the alternative deposit orders.

2. The Employment Tribunal erred in treating prior knowledge by the recipient as precluding PIDs 3 and 4 from being disclosures of information. Section 43L(3) of the Employment Rights Act 1996 expressly provides that, where the recipient is already aware of information, disclosure includes bringing it to that person’s attention.

3. The Tribunal also applied too low a threshold when striking out the claims. There were material disputes about the reasons for the alleged detriments and dismissal. A protected disclosure need only have materially influenced the relevant act; it did not have to be the principal reason. The reasoning instead assessed how the evidence was likely to develop, rather than whether the claims had no reasonable prospect of success.

4. The Tribunal had nevertheless correctly understood that strike-out under rule 37 involved a discretionary second stage. Its error lay in its application of the no-reasonable-prospect threshold, not in failing to recognise that discretion.

5. The alternative deposit orders were lawful. Rule 39 imposes the lower test of little reasonable prospect of success and gives the Tribunal a broad judicial discretion. It was entitled, on the preliminary material, to take a provisional view of the likelihood that the Claimant could establish a causal link between the disclosures and the alleged detriments or dismissal. It had a proper basis for doubting that link and did not reverse the burden under section 48(2).

6. The alternative orders of £250 for the detriment claims and £250 for the dismissal claim were to stand in substitution for strike-out. The matter was remitted to the Employment Tribunal to draw up those orders formally.

• Employment Appeal Tribunal: Allowed the appeal against the Employment Tribunal’s strike-out decision and dismissed the appeal against its alternative deposit orders: [2019] UKEAT 0121_19_1308.
• Employment Tribunal, Watford: On 7 December 2018, with judgment sent to the parties on 29 January 2019, struck out the protected-disclosure claims and alternatively proposed two deposit orders.