Riley v Belmont Green Finance Ltd (t/a Vida Homeloans)

A worker alleging whistleblowing detriment must establish a qualifying disclosure. A general complaint about defective IT systems, work allocation or workplace processes will not satisfy section 43B(1)(b) of the Employment Rights Act 1996 unless it obviously indicates a breach of legal obligation or identifies such an obligation with sufficient specificity.

For causation, an employer may distinguish the manner of making a disclosure from its content only where the relied-on conduct is genuinely separable from making the disclosure. Ordinary unreasonable behaviour will not readily justify that distinction. An error on causation is immaterial where no qualifying disclosure was made.

The Claimant, a temporary mortgage-underwriter, alleged that the Respondent terminated his assignment and removed him from its office because of protected disclosures made at a meeting on 13 March 2017.

The Employment Tribunal at Reading found that he was a worker, but dismissed his claim under section 47B of the Employment Rights Act 1996. It found that he had made complaints about work allocation, a faulty telephone and IT systems, but had not raised the alleged regulatory and lending concerns. Those complaints were not qualifying disclosures. The Tribunal also held, alternatively, that the detriments were caused by his manner and behaviour rather than disclosures.

The Claimant appealed on perversity, qualifying disclosure and causation. The central issue was whether the factual findings disclosed an error of law capable of affecting the dismissal of the claim.

1. Appeal dismissed. The Employment Tribunal's factual findings about what the Claimant said at the meeting were reasonably open to it. An appeal on perversity succeeds only where an overwhelming case shows that no reasonable tribunal, properly directing itself on the evidence and law, could have reached the decision. The Tribunal had considered the later email on which the Claimant relied alongside the other evidence and was entitled to resolve any inconsistency in the evidence.

2. On those findings, there was no material error in the conclusion that the Claimant had made no qualifying disclosure under section 43B(1)(b) of the Employment Rights Act 1996. A disclosure concerning an IT system freezing and preventing the processing of customer cases did not obviously identify a breach or potential breach of legal obligation. Nor had the Claimant identified a relevant legal obligation with sufficient specificity when making the disclosure. Before the Tribunal, he also failed to explain how the alleged facts could demonstrate breach of a legal, rather than moral, regulatory or guidance-based, obligation.

3. The Tribunal did err in its alternative causation analysis under section 47B(1). It had found that the Claimant's manner at the meeting contributed to the detriments, but did not explain why being angry, frustrated, generally negative and dismissive was genuinely separable from making the complaints. Such findings described, at most, ordinary unreasonable behaviour. However, that error could not affect the result because the complaints found to have been made were not qualifying disclosures.

• Employment Appeal Tribunal: dismissed the Claimant's appeal in [2020] UKEAT 0133_19_1303.
• Employment Tribunal, Reading: in a judgment sent to the parties with reasons on 18 July 2018, held that the Claimant was a worker but dismissed his section 47B whistleblowing-detriment claim.