Arjomand-Sissan v East Sussex Healthcare NHS Trust

A qualifying disclosure under section 43B(1) of the Employment Rights Act 1996 requires information which, in the worker’s reasonable belief, tends to show a specified category of wrongdoing. The worker need not use strict legal language or identify a precise legal obligation within the disclosure. However, an assertion that a breach is obvious must be capable of substantiation before the tribunal.

A tribunal may reject a claimed disclosure where the information is too vague to tend to show the alleged wrongdoing, or where there is no evidence of what was said in an alleged oral disclosure. An appellate court will interfere for perversity only where the tribunal’s conclusion was one that no reasonable tribunal could have reached.

The claimant, an Information Management and Technology Manager employed by an NHS trust, resigned in 2016. He had presented proceedings alleging race discrimination, unfair dismissal and detriment for protected disclosures under the Employment Rights Act 1996.

Following a 12-day hearing, the Employment Tribunal dismissed all claims. It found two protected disclosures and several detriments, but no causal connection between them. It rejected the other alleged disclosures as not qualifying disclosures.

The claimant appealed the dismissal of the whistleblowing claim. He contended that the Tribunal had imposed excessive requirements of specificity under section 43B(1), and that its conclusions on several alleged disclosures were perverse. The central issue was whether the Tribunal had misapplied the statutory test for a qualifying disclosure.

1. Appeal dismissed. The Employment Tribunal made no error of law and none of its challenged findings was perverse.

2. The Tribunal had correctly directed itself that a qualifying disclosure under section 43B(1) of the Employment Rights Act 1996 requires information which, in the worker’s reasonable belief, tends to show one of the specified matters. It did not lose sight of that test merely because it did not repeat every element when dealing with each alleged disclosure.

3. The Tribunal had also correctly understood the authorities on specificity. A worker need not identify a legal obligation in strict legal language, and a potential liability may be apparent as a matter of common sense. But where a claimant asserts that a legal obligation was obvious, the contention must be tested by reference to an identifiable obligation before the Tribunal. The Tribunal did not confuse the contents required in a disclosure with the particulars required in tribunal proceedings.

4. The challenged written disclosures did not contain information which could reasonably be found to tend to show fraud, breach of legal obligation, danger to health and safety, or deliberate concealment. References to manipulation, a new code, a bigger question, inaccurate data or a disputed target calculation were either insufficiently specific or did not support the pleaded allegation of wrongdoing. The Tribunal was entitled to reach that conclusion even after considering the communications in their context.

5. The alleged oral disclosures were also properly rejected. A tribunal must be able to identify what the worker actually said before deciding whether it was a qualifying disclosure. The evidence did not establish the terms of the alleged reports to the relevant managers or counter-fraud specialist. Later reports and findings could not establish that the claimant had himself made the required disclosure.

6. The perversity challenge failed. The applicable threshold, stated in [2002] IRLR 634, requires an overwhelming case that no reasonable tribunal, properly directing itself on the evidence and law, could have reached the decision. That threshold was not met.

7. The respondent’s preliminary objection was academic. Nevertheless, the Tribunal’s references to continuity between disclosures did not determine the statutory time issue, since continuity under section 48(3) concerns detriments rather than disclosures. Nor had it made a general causation finding capable of binding consideration of disclosures which it had not found to be protected.

• Employment Appeal Tribunal: Appeal dismissed: [2019] UKEAT 0122_17_1704.
• Employment Tribunal: London South Employment Tribunal dismissed the claimant’s complaints of race discrimination, unfair dismissal and whistleblowing following a 12-day hearing. The decision was sent to the parties on 1 February 2017.