R Kealy v Westfield Community Development Association

The Employment Appeal Tribunal allowed the appeal in part and remitted the claims for rehearing because the employment tribunal failed to apply the statutory two-stage analysis required for protected disclosures under the Employment Rights Act 1996. The tribunal did not adequately determine whether qualifying disclosures existed under section 43B before deciding whether any such disclosures were converted into protected disclosures by sections 43C or 43G. The agreed list of issues conflated elements of the tests in sections 43B and 43G, produced unsafe findings about the claimant's reasonable belief in the truth of disclosures and improperly relied on global credibility findings. The tribunal also gave insufficient reasoning on public interest and some findings were not Meek compliant. For these errors the EAT remitted the matter to a differently constituted employment tribunal for a full rehearing.

Background and parties

The claimant was employed as an Early Years Co-ordinator from 1 October 2016 by the respondent, a charity operating a community centre with a nursery. The claimant asserted nine disclosures: disclosures 1–4 concerned Early Years Pupil Premium and Disability Access Funds and disclosures 5–9 concerned a breakdown of the nursery heating. The claimant alleged seven detriments and resigned on 4 December 2019, bringing claims including protected disclosure detriment and dismissal, health and safety detriment and dismissal, dismissal for assertion of a statutory right and constructive unfair dismissal.

Procedural posture

• The employment tribunal (Employment Judge Blackwell with members) heard the matter on 27–29 September 2021 and gave judgment 11 January 2022 dismissing all claims.
• Permission to appeal was granted and the matter proceeded to the EAT. A Burns/Barke order required the tribunal to answer specified questions and the claimant was permitted to add a further ground of appeal.
• The respondent withdrew from further participation at the EAT hearing.

Issues framed

1. Whether the claimant made qualifying disclosures under section 43B of the Employment Rights Act 1996.
2. If qualifying disclosures existed, whether they constituted protected disclosures under section 43C or section 43G.
3. Whether the claimant reasonably believed disclosures were substantially true and made in the public interest, and whether detriments and dismissal were causally connected to protected disclosures.

Court's reasoning and conclusions

• The EAT emphasised the statutory two-stage analysis: first decide whether there was a qualifying disclosure under section 43B (disclosure of information, reasonable belief it tends to show a relevant failure, and belief that it was in the public interest), then determine whether the qualifying disclosure was made in accordance with sections 43C–43G so as to be protected.
• The tribunal's list of issues conflated elements of sections 43B and 43G and thereby failed to address separately (a) whether each disclosure tended to show a relevant failure and was reasonably believed to be so, and (b) whether, where disclosures were made externally, the higher requirements of section 43G (for example reasonable belief that information is substantially true and that it was reasonable to make the disclosure) were met.
• The tribunal treated falsity of some factual allegations as dispositive of the claimant's reasonable belief that disclosures were substantially true, ignoring that section 43G requires a reasonable belief rather than objective truth. The tribunal also relied on an overarching credibility assessment (including an adverse finding about what the claimant told Ofsted) in a way that rendered key findings unsafe and potentially perverse.
• The tribunal gave insufficient reasoning on whether some detriments (for example failure to respond to a grievance after resignation) could be detrimental and did not adequately address causation under the statutory tests for dismissal and detriment claims.
• For these legal and reasoning defects the EAT concluded the original findings were unsafe and remitted the claims for rehearing by a differently constituted employment tribunal.

The Employment Appeal Tribunal allowed the appeal in part and remitted the claims to a newly constituted employment tribunal for a full rehearing. The EAT found that the employment tribunal erred in law by conflating the separate stages of the protected-disclosure analysis under sections 43A, 43B, 43C and 43G of the Employment Rights Act 1996, failed to determine whether qualifying disclosures existed before considering protection, applied an incorrect standard when assessing the claimant's belief in the truth of disclosures, made unsafe credibility findings, and gave insufficient reasoning on some detriment and causation issues.

Appeal from the Employment Tribunal (Employment Judge Blackwell, hearing 27–29 September 2021; judgment sent 11 January 2022). Permission to appeal was dealt with by Judge Keith (order dated 16 June 2022). A Burns/Barke order was made (sealed 14 September 2022) requiring the employment tribunal to answer questions; the tribunal provided answers on 6 October 2022. An application to add a further ground of appeal was permitted by Eady J (P) (order sealed 1 March 2023). The respondent withdrew from attendance at the EAT hearing; the EAT proceeded in their absence and remitted the matter for rehearing.