Robinson v His Highness Sheikh Khalid Bin Saqr Al Qasimi (Whistleblowing, Protected disclosures)

A later communication may be treated as a qualifying disclosure only where it expressly, or by necessary implication, refers to or incorporates an earlier disclosure. Whether it does so is a question of fact. It is insufficient merely that the communication forms part of continuing correspondence.

For Employment Rights Act 1996 section 47B, detriment bears its ordinary discrimination-law meaning: a reasonable worker must or might regard the treatment as disadvantageous. The protected disclosure must materially influence the treatment.

Illegal performance which ended years before dismissal did not bar enforcement of contractual and statutory dismissal rights where no later illegal performance was identified.

The claimant was engaged from 2007 under terms making her responsible for tax. She did not declare or pay tax until the issue emerged in 2014. She subsequently alleged that the respondent had failed to operate PAYE and had manipulated staff employment status. She was dismissed in May 2017.

The Employment Tribunal found unfair and wrongful dismissal in limited respects, but held that illegality barred those claims. It rejected the whistleblowing dismissal and detriment claims. It also found six communications to be protected disclosures. Separate decisions granted interim relief and refused reconsideration.

The claimant appealed, the respondent cross-appealed on protected disclosures, and the respondent appealed the interim-relief decisions. The central issues included incorporation of earlier disclosures, causation, illegality, and the effect of a merits decision on interim relief.

1. Appeals allowed in part. The claimant's appeal succeeded on illegality. The respondent's cross-appeal succeeded as to the third and seventh alleged disclosures. The respondent's appeals concerning interim relief also succeeded.
2. The Tribunal was entitled to find that dismissal resulted from the dispute over who bore the claimant's historic tax liability, rather than from her protected disclosures. It was likewise entitled to find that protected disclosures had not materially influenced the alleged sidelining detriments. Although the Tribunal erred in its approach to whether one change in reporting arrangements was a detriment, that error could not affect the outcome on causation.
3. A qualifying disclosure under Employment Rights Act 1996 section 43B requires information with sufficient factual content and specificity. The worker must actually believe the disclosure is in the public interest, and that belief must be reasonable. A later disclosure may include information in an earlier one only where it expressly or necessarily incorporates it. The second, fourth, fifth and sixth disclosures were protected; the third and seventh were not.
4. The claimant knowingly performed the contract illegally between 2007 and 1 July 2014. That conduct barred enforcement during that period. However, after 1 July 2014 no illegal performance by her was identified. The historic illegality could not justify refusing enforcement when she was dismissed almost three years later. She could pursue wrongful-dismissal and unfair-dismissal compensation, subject to appropriate reduction of any basic award for the earlier period.
5. The interim-relief order was set aside. Interim relief preserves the position pending determination of the substantive complaint. Once it was known that the whistleblowing dismissal claim had failed, no order could properly be made retrospectively. The refusal to reconsider was also set aside; in these unusual circumstances reconsideration was open in the interests of justice, but no remittal was required.

• Employment Appeal Tribunal: Allowed the claimant's appeal on illegality, allowed the respondent's cross-appeal in respect of the third and seventh disclosures, and set aside the interim-relief and reconsideration decisions.
• Employment Tribunal: Decision of 21 November 2018 rejected the whistleblowing claims and held that illegality barred unfair- and wrongful-dismissal claims, despite limited findings of unfairness and wrongful dismissal.
• Employment Tribunal: Employment Judge Stewart granted interim relief by a decision sent on 13 November 2018 and refused reconsideration by a decision dated 10 December 2018 and sent on 23 January 2019.