Declan Durey v South Central Ambulance Service NHS Foundation Trust

A tribunal deciding whether a worker reasonably believed a disclosure was in the public interest must assess the whole picture known, or reasonably appreciable, at the time. It must not substitute its own view for the worker’s, but its own assessment may inform the permissible range of reasonable views. The words “tends to show” do not require separate analysis where the pleaded case concerns the alleged risk itself.

A detriment claim based on a deliberate failure to act also requires proof that the omission was deliberate and was on the ground of the protected disclosure. An appellate tribunal will not reopen evaluative findings without a properly established perversity or reasons error.

The EAT will not determine an undecided, academic remedy issue merely to give general guidance, particularly where neither party faces a present practical injustice.

The claimant, a paramedic employed by the respondent ambulance trust, brought claims for whistleblowing detriment, constructive unfair dismissal and wrongful dismissal. He relied, among other matters, on a 2015 disclosure concerning changes to paramedic training placements and a 2018 disclosure concerning the safety of the handling of a 999 call.

The Employment Tribunal at Reading dismissed all claims. It found that the 2015 disclosure was not protected because the claimant did not reasonably believe that the alleged risk to patient safety made the disclosure in the public interest. It found that the 2018 disclosure was protected, but that the alleged treatment was not detrimental or was not because of that disclosure.

The claimant appealed on qualifying disclosure, detriment, constructive dismissal, reasons and witness-evidence grounds. The respondent cross-appealed on whether compensation for non-pecuniary loss is available for whistleblowing detriment claims.

1. Appeal dismissed. The Tribunal made no error in holding that disclosure 2 was not a qualifying, and therefore protected, disclosure under Employment Rights Act 1996, section 43B(1). The claimant’s case was that the changes themselves, coupled with the absence of advance notification to the regulator, created a patient-safety risk. The Tribunal was entitled to conclude that this belief was not reasonably held.

2. The statutory words “tends to show” can matter where information reasonably supports, but does not establish, the relevant state of affairs. They did not materially alter the issue in this case. The Tribunal had accurately identified the statutory test and was not required to repeat those words in its final conclusion.

3. The Tribunal was entitled to take account of the respondent’s explanation for the training changes when assessing the reasonableness of the claimant’s belief. That assessment was evaluative and could be disturbed only on perversity-type grounds. The Tribunal was not obliged to address every item of evidence, including every aspect of the later investigation report.

4. The challenges to the conclusions on detriment failed. In particular, the Tribunal permissibly found that there was no deliberate delay in appointing an investigator and no causal link between the handling of the investigation and disclosure 2. It also permissibly found that the managers alleged to have acted adversely did not know of disclosure 9 and acted from welfare or supportive concerns.

5. The Tribunal’s reasons, read as a whole, sufficiently addressed the final period of sickness absence and resignation. It had found that the respondent acted with reasonable and proper cause in pursuing grievance, absence-management and occupational-health processes. The constructive dismissal and wrongful dismissal claims therefore failed.

6. The cross-appeal was dismissed. The Tribunal was not obliged to decide the non-pecuniary-loss issue after dismissing liability. Under section 21 of the Employment Tribunals Act 1996, the EAT was not persuaded that it could determine an issue on which the Tribunal had made no decision. If it had that power, it would decline to exercise it because the issue was academic between these parties and could be decided if it later became necessary. [1981] ICR 8 was followed.

• Employment Appeal Tribunal: Appeal and cross-appeal dismissed: [2024] EAT 173.
• Employment Tribunal: Reading Employment Tribunal dismissed the claimant’s whistleblowing detriment, constructive unfair dismissal and wrongful dismissal claims.