M Carr v Bloomberg LP

A tribunal may determine at strike-out stage whether the objective requirements for a qualifying disclosure under Employment Rights Act 1996, section 43B, can be met. It must assume the worker’s factual case at its highest, but may assess undisputed communications and their pleaded context without conducting a mini-trial.

A communication must contain sufficiently specific factual information capable of tending to show the alleged relevant failure. General criticism of editorial coverage, suggestions for improvement, or references to climate change did not meet that requirement in this case. The public-interest requirement concerns making the particular disclosure, not merely its general subject matter. A disclosure of alleged retaliation against the worker personally was not rendered public-interest disclosure merely because it arose from concerns about climate reporting.

The claimant, a journalist employed by the respondent, brought claims for automatic unfair dismissal and detriment for protected disclosures. He alleged that seven written or oral communications about the respondent’s climate-change reporting, alleged concealment of environmental damage, and retaliation against him were qualifying disclosures.

The Employment Tribunal struck out Protected Disclosures 2 and 3 as having no reasonable prospect of success, but permitted Protected Disclosures 1 and 4–7 to proceed. The claimant appealed the strike-out of Disclosures 2 and 3. The respondent cross-appealed the refusal to strike out the remaining disclosures.

The central issue was whether, taking the claimant’s case at its highest, the communications could meet the objective requirements for qualifying disclosures under section 43B of the Employment Rights Act 1996.

1. The claimant’s appeal was dismissed and the respondent’s cross-appeal was allowed. Protected Disclosures 1 and 4–7 were struck out as having no reasonable prospect of success. The Tribunal had correctly struck out Protected Disclosures 2 and 3.

2. At strike-out stage, the Tribunal could assess the first and third objective elements of section 43B on the undisputed wording of the communications, while assuming the claimant’s pleaded factual case and relied-on context in his favour. This was a technical application of statutory criteria, not a determination of disputed causation facts.

3. Applying Kilraine, a qualifying disclosure must contain information with sufficient factual content and specificity capable of tending to show the relevant failure. The communications did not convey information capable of tending to show that the respondent was causing environmental damage, or was deliberately concealing such damage. Criticism of editorial choices, perceived bias, inadequate reporting, and a desire to report climate issues differently did not satisfy that test.

4. The public-interest inquiry asks whether the worker could reasonably believe that making that disclosure was in the public interest. It is not enough that climate change is generally a subject of public interest. Relevant considerations may include the recipient’s responsibility for, and power to address, the alleged damage, and whether the disclosure identifies a specific harmful act or omission. Novelty is not a statutory prerequisite.

5. Under Chesterton, alleged retaliation against the claimant in his own employment relationship could not reasonably be regarded as a disclosure in the public interest on the facts pleaded. No wider group of workers was said to be affected. The climate-related subject matter did not transform that personal complaint into a public-interest disclosure.

6. The Employment Tribunal had erred by failing to apply the Kilraine analysis to several surviving claims and, for the personal retaliation claims, by failing to apply the public-interest requirement correctly. There was no realistic prospect that amendment or further evidence before trial could cure those deficiencies. Cross-appeal Ground 2, concerning Element Five, did not require determination.

• Employment Appeal Tribunal: The claimant’s appeal against the strike-out of Protected Disclosures 2 and 3 was dismissed. The respondent’s cross-appeal succeeded, and Protected Disclosures 1 and 4–7 were also struck out.
• Employment Tribunal: On 9 June 2021, the London Central Employment Tribunal struck out Protected Disclosures 2 and 3, but declined to strike out Protected Disclosures 1 and 4–7.