Twist DX Ltd & Ors v Armes & Ors

A worker need not expressly identify a particular legal obligation, criminal offence, or health and safety danger for a communication to be capable of being a qualifying disclosure under section 43B(1) of the Employment Rights Act 1996. The statutory question is whether the worker disclosed sufficiently factual and specific information, and reasonably believed that it tended to show a specified matter.

Context may inform both the meaning of a communication and the reasonableness of the worker’s belief. A tribunal must nevertheless identify the information in each alleged disclosure and assess its capacity to satisfy the statutory test. General references to product strategy, commercial concerns, or requests for a response will not, without more, constitute qualifying information.

Dr Armes alleged that he had been subjected to detriments and automatically dismissed for protected disclosures and for raising health and safety concerns. His concerns related to alleged contamination risks in a diagnostic product which could produce inaccurate test results.

The Employment Tribunal refused the respondents’ application to strike out all seven pleaded disclosures under sections 47B, 103A and 100(1)(c) of the Employment Rights Act 1996. The respondents appealed, contending that the Employment Judge had failed properly to apply the statutory requirements for a qualifying disclosure.

The central issue was whether each pleaded communication disclosed information capable of being reasonably believed to tend to show a relevant criminal, legal, regulatory, or health and safety matter.

1. Appeal allowed. The Employment Judge erred in law by failing to identify the information said to have been disclosed in each communication and by not determining whether that information had sufficient factual content and specificity to be capable of satisfying section 43B(1) of the Employment Rights Act 1996.

2. The statutory inquiry requires the tribunal to identify the information disclosed, the worker’s belief as to what it tended to show, and whether that belief was reasonable. The meaning and sufficiency of a communication are evaluative matters which may require evidence of its context. They are not invariably determined from the bare words of a written communication.

3. There is no additional rule that a worker must identify a specific legal obligation, or expressly state that the information shows illegality, before a disclosure can fall within section 43B(1)(b). Whether the communication expressly refers to illegality, regulation, or health and safety is evidence bearing on the worker’s belief and its reasonableness.

4. Disclosure 3, the detailed email and attachment concerning contamination risks, inaccurate diagnostic results, and potential regulatory risk, was realistically arguable as a qualifying disclosure and was not struck out. Its commercial content did not preclude a health and safety or regulatory character.

5. Disclosures 1, 2 and 4 to 7 had no reasonable prospect of satisfying the statutory definitions on the pleaded case. They did not disclose sufficiently specific qualifying information, or consisted substantially of commercial concerns or requests for communication. They were struck out, subject to Dr Armes having 28 days to apply to amend. If no application were made, the strike-out would take effect without further notice.

6. The same conclusion applied, in the circumstances of this strike-out application, to the alleged health and safety disclosures under section 100(1)(c).

• Employment Appeal Tribunal: Allowed the respondents’ appeal and varied the Employment Tribunal’s refusal to strike out the claims founded on the pleaded disclosures.
• Employment Tribunal, Bury St Edmunds: Following a preliminary hearing in October 2019, refused to strike out Dr Armes’ protected-disclosure and health and safety claims. Reasons were sent on 14 November 2019.