R Kealy v Westfield Community Development Association

In protected-disclosure claims, a tribunal must determine separately and sequentially whether there was a qualifying disclosure and whether it became protected by the route through which it was made. A qualifying disclosure under Employment Rights Act 1996 section 43B requires the worker's reasonable belief in public interest and in a tendency to show a relevant failure. The additional requirements for an external disclosure under section 43G arise only afterwards.

A worker's purpose in making a disclosure is not the same question as whether the worker reasonably believed it was in the public interest. Nor does objective falsity necessarily preclude a reasonable belief that information was substantially true. Tribunals must apply the distinct statutory tests to health-and-safety claims and give adequate reasons.

The claimant, an Early Years Co-ordinator employed by the respondent charity, alleged nine protected disclosures concerning the use of nursery funds and heating failures. She also alleged protected-disclosure detriment and dismissal, health-and-safety detriment and dismissal, dismissal for asserting a statutory right, and constructive unfair dismissal.

The Employment Tribunal dismissed every claim. Its list of issues combined the requirements for qualifying and protected disclosures. It made findings about the alleged disclosures and the claimant's credibility. The claimant appealed on grounds including erroneous statutory analysis, perversity and inadequate reasons.

The central issue was whether the Employment Tribunal had applied the statutory protected-disclosure and health-and-safety tests in a legally structured and sustainable way.

1. Appeal allowed. The Employment Tribunal's dismissal of all claims was unsafe. The case was remitted for a full rehearing before a differently constituted Employment Tribunal.

2. Under Employment Rights Act 1996 section 43A, the tribunal had to decide first whether each alleged disclosure was a qualifying disclosure under section 43B. That inquiry required a disclosure of information and the worker's reasonable belief both that it was made in the public interest and that it tended to show a relevant failure. Only then could it determine whether the disclosure was protected through section 43C or section 43G.

3. The agreed list of issues improperly conflated those stages. It also applied the section 43G requirement of a reasonable belief that the information and allegation were substantially true without first identifying a qualifying disclosure, and apparently to disclosures made to the employer, for which section 43G did not apply. Objective falsity did not itself establish that the claimant lacked the required reasonable belief.

4. The Tribunal further failed to decide whether the claimant reasonably believed that disclosures were made in the public interest. Its later conclusion that the purpose was to undermine a manager confused motive with the statutory public-interest-belief requirement: Chesterton Global Ltd v Nurmohamed [2018] ICR 731 applied.

5. Its conclusion that a post-resignation failure to respond to a grievance could not be detrimental was a non sequitur and inadequately reasoned. Its central credibility finding was also perverse because it was inconsistent with its finding that the claimant's document to Ofsted recorded steps the respondent had taken to address the heating problem.

6. For the health-and-safety claims, the Tribunal could not simply read across its constructive-dismissal findings. It had to apply the distinct statutory tests and the respondent's burden under section 48(2). The cumulative legal errors, inadequate reasons and unsafe factual findings required all facts to be found anew.

• Employment Appeal Tribunal: appeal allowed; the Employment Tribunal decision was set aside and all claims were remitted for a full rehearing before a differently constituted tribunal: [2023] EAT 96.
• Employment Tribunal: Employment Judge Blackwell, sitting with members, dismissed all claims in a judgment sent to the parties on 11 January 2022.