Leclerc v AMTAC Certification Ltd

A qualifying disclosure under section 43B(1) of the Employment Rights Act 1996 must have sufficient factual content and specificity capable of tending to show a listed wrongdoing. There is no rigid distinction between an allegation and information. An allegation may qualify where, in context, it also conveys the necessary information.

Whether a disclosure is in the public interest depends on the worker’s belief and the reasonableness of that belief. The public-interest motive need not predominate. Findings that particular statements lacked the required information, or that detriments were not caused by disclosures, will stand where the tribunal applied those principles and was entitled to make its factual findings.

The claimant was employed as a technical reviewer and auditor by a body assessing medical devices for regulatory certification. Following her dismissal, she alleged that she had made protected disclosures and had been dismissed or subjected to detriments because of them.

The Employment Tribunal found that most alleged disclosures did not contain information tending to show a matter within section 43B of the Employment Rights Act 1996. It found one protected disclosure, but held that neither dismissal nor any actionable detriment was caused by it or by the other alleged statements. The claimant appealed, principally contending that the Tribunal had construed qualifying disclosures too narrowly and had consequently erred on causation.

1. Appeal dismissed. The Employment Tribunal had directed itself correctly on qualifying disclosures. A statement must have sufficient factual content and specificity capable of tending to show one of the matters listed in section 43B(1) of the Employment Rights Act 1996, applying Kilraine.

2. The Tribunal had not adopted an impermissibly rigid distinction between allegations and information. Its self-direction expressly recognised that allegations may also contain information, including mixed factual and opinion material. It also understood the regulatory and safety context in which the claimant’s statements had been made.

3. Having considered each statement in that context, the Tribunal was entitled to find that the statements in issue lacked sufficient factual content and specificity, save for the limited disclosure it accepted. Its transcription errors in the written reasons were immaterial because it had considered the underlying documents at the hearing. The claimant could not introduce on appeal further passages which she had not identified before the Tribunal as protected disclosures.

4. The Tribunal was also entitled to find that the overtime-related statements were not qualifying disclosures because the claimant did not reasonably believe that making them was in the public interest. The relevant inquiry concerns the worker’s belief and its reasonableness; a public-interest belief need not be the predominant motive.

5. The causation ground consequently failed. Independently, the Tribunal had found that none of the alleged detriments was caused or materially influenced by any alleged disclosure. There was no basis to disturb those factual findings. The proposed expansion of the appeal to challenge dismissal was refused: dismissal under section 103A and detriment under section 47B are distinct statutory issues.

• Employment Appeal Tribunal: Appeal dismissed: [2020] UKEAT 0244_19_2102.
• Employment Tribunal: Oral decision given on 27 July 2018, with written reasons provided on 8 November 2018. It dismissed the protected-disclosure dismissal and detriment claims at issue.