Brian Kristensen v Portman Healthcare Limited

For a disclosure to qualify for whistleblowing protection, the worker must genuinely believe it is in the public interest and that belief must be objectively reasonable. A disclosure concerning the worker’s own contractual position may nevertheless meet that test where its circumstances reasonably engage a wider public interest.

An Employment Tribunal errs where its finding about the worker’s purpose or belief is unsupported by the evidence. Where that error materially informs the conclusion on public interest, the protected-disclosure issue must be redetermined.

The claimant, a dental hygienist, alleged that his signature had been forged on an employment contract. He reported the alleged forgery to the police, attended his workplace with an officer and later complained in writing to the respondent’s chief executive.

The Employment Tribunal struck out his claim of automatic unfair dismissal for making protected disclosures. It accepted that he genuinely believed his signature had been forged, but found that he did not genuinely believe his disclosures were in the public interest. It treated the matter as a private contractual dispute and found that he wanted the police officer merely to witness his personnel file.

The claimant appealed. The central issue was whether those findings about the police involvement and the claimant’s public-interest belief were open to the Tribunal on the evidence.

1. Appeal allowed. The Tribunal’s finding that the claimant did not want a crime investigated, but wanted only a police officer to witness the contents of his personnel file, was not open to it on the evidence. The pleaded cases, witness evidence and the report to the police showed that he had alleged fraud and sought a police investigation.

2. That perverse finding materially underpinned the Tribunal’s conclusion that the claimant lacked a genuine belief that his disclosure was in the public interest. The Tribunal had accepted that he genuinely believed his signature had been forged. It therefore had to address, on a proper factual basis, whether the disclosure could reasonably be regarded as being in the public interest as well as in his personal interest.

3. The approach in Chesterton Global Limited v Nurmohamed requires separate consideration of whether the worker believed the disclosure was in the public interest and whether that belief was reasonable. The worker’s personal interest or mixed motives do not prevent a qualifying disclosure. Relevant circumstances may include the number of persons affected, the interests affected, the nature of the alleged wrongdoing and the identity of the alleged wrongdoer.

4. The EAT could not itself determine the outstanding public-interest issue because it had not heard submissions on other relevant matters identified at the sift stage. The issue was remitted for redetermination. The Tribunal must proceed on the basis that the claimant’s police involvement followed his report of alleged fraud.

• Employment Appeal Tribunal: Allowed the appeal against the striking out of the automatic unfair dismissal claim based on protected disclosures and remitted that issue for redetermination: [2023] EAT 121.
• Employment Tribunal, London Central: At a preliminary hearing in June and August 2022, struck out the claim of automatic unfair dismissal by reason of a protected disclosure. Written reasons were sent on 1 November 2022.