M Carr v Bloomberg LP

The Employment Appeal Tribunal considered an appeal from an Employment Tribunal decision to strike out two of seven alleged protected disclosures and a cross-appeal by the employer seeking strike out of the remaining five. The case concerned alleged whistleblowing about the employer's editorial coverage of climate change and whether various communications met the definition of a "qualifying disclosure" under section 43B of the Employment Rights Act 1996 (limbs (1)(b), (1)(e) and (1)(f)).

Legal principles: the Tribunal must apply the tests in Kilraine v London Borough of Wandsworth for whether a communication contains "information" with sufficient factual content and specificity, and in Chesterton Global v Nurmohamed for whether a worker's belief that disclosure is "in the public interest" is objectively reasonable. Strike-out is a draconian remedy and should be used only where a claim has no realistic prospect of success.

Decision: the appellant's appeal against the Employment Tribunal's strike out of Protected Disclosures 2 and 3 was dismissed. The respondent's cross-appeal was allowed in part: Protected Disclosures 1 and 4–7 were struck out as having no reasonable prospect of success because either (a) the communications lacked the requisite factual content and specificity to satisfy section 43B(1) (Kilraine) or (b) the claimant had no realistic prospect of establishing a reasonable belief that the disclosure was "in the public interest" (Chesterton) on the facts pleaded.

Background and parties: Mr M Carr, a long-serving Bloomberg reporter on Natural Gas, Carbon & Power, claimed automatic unfair dismissal and detriments under the Employment Rights Act 1996 after his dismissal, alleging he had made protected disclosures about Bloomberg's coverage of climate change. The respondent employer cross-appealed the Employment Tribunal's decision not to strike out five of the alleged disclosures.

Nature of the application: strike-out applications to determine whether seven communications (six written, one oral) constituted qualifying disclosures under section 43B ERA, specifically under limbs (1)(e) (environmental damage), (1)(f) (deliberate concealment of such information) and, in respect of two disclosures, (1)(b) (failure to comply with a legal obligation / alleged retaliation).

Procedural posture: the Employment Tribunal struck out two disclosures and permitted five to proceed. Permission to appeal and cross-appeal to the EAT was granted. The EAT heard the appeals shortly before a scheduled merits hearing.

Issues for decision:

• Whether each communication disclosed "information" with sufficient factual content and specificity to be capable of tending to show the statutory matters (Kilraine test) (Element One).
• Whether the claimant could reasonably believe that making the disclosure was "in the public interest" (Chesterton factors) (Element Three), particularly where disclosures concerned the claimant's own treatment or generalised environmental commentary.
• Whether the Employment Tribunal properly applied strike-out principles and relevant authorities (Twist DX, Ezsias, Anyanwu and others) and whether its exercise of discretion was lawful.

Court's reasoning and outcome: the EAT reaffirmed that strike-out is exceptional but that objective elements of the qualifying-disclosure test can be decided summarily where the content is undisputed. The EAT found the Employment Tribunal had failed in places to apply the Kilraine and Chesterton tests, and in several instances had relied on generalised opinion or context-free assertions rather than information with sufficient factual content and specificity. On application of the correct tests to the pleaded communications and assumed factual context, the EAT concluded there was no reasonable prospect of success for Protected Disclosures 1 and 4–7 (struck out). The appellant's appeal against the strike out of Disclosures 2 and 3 failed. The EAT therefore dismissed the appellant's appeal and allowed the cross-appeal in part, striking out five disclosures.

Subsidiary findings: where communications alleged retaliation against the claimant personally, the EAT applied Chesterton carefully and held that disclosures about personal treatment were unlikely to be reasonably believed to be "in the public interest" absent wider features (for example, evidence that many others were affected).

Appeal dismissed; cross-appeal allowed in part. The EAT held that the Employment Tribunal had not always applied the correct legal tests (Kilraine for sufficiency of "information" and Chesterton for reasonable belief that disclosure was in the public interest). Applying those tests to the undisputed communications (and assuming the claimant's pleaded factual context), five of the seven alleged protected disclosures had no realistic prospect of satisfying section 43B(1) ERA and were struck out.

Permission to appeal was granted by John Bowers QC (sitting as a Deputy High Court Judge) on 21 September 2021; permission for the respondent's cross-appeal was granted by Choudhury J, President, on 2 November 2021. The Employment Tribunal's reserved judgment (preliminary hearing) was sent on 9 June 2021. Final EAT decision: [2022] EAT 49 (3 December 2021).