Toby Nicol v World Travel and Tourism Council & Ors

The Employment Appeal Tribunal considered an appeal from an Employment Tribunal dismissal of a whistleblowing claim under the Employment Rights Act 1996 (notably s.103A and s.47B and the qualifying disclosure provisions in s.43B). The EAT found two legal errors in the ET's fact-finding: (i) the ET decided that PD3 had not been made despite an admission in the respondent's pleadings that the claimant had communicated the relevant information to the HR consultant; and (ii) the ET made an adverse finding that the claimant had made inappropriate sexualised comments to a colleague when that issue had not been put to the claimant in cross-examination.

However, the EAT upheld the ET's approach to onward communication of a qualifying disclosure: for protection to attach on the basis of onward transmission from person A to person B, person B must have sufficient awareness of the substance of the disclosure (not merely knowledge that a disclosure was made). Applying the statutory tests (including the Kilraine principle on sufficient factual content and the Beatt distinction on objective determination of protection), the EAT concluded that the identified errors did not affect the tribunal's overall outcome and remittal was unnecessary.

Background and parties: The claimant, employed as Vice-President of Communications from 1 May 2019, alleged that he made multiple disclosures (PD1–PD6) about the CEO's management style and culture at the first respondent (a not-for-profit tourism body) and that he suffered detriment and automatic unfair dismissal as a result. The respondents were the World Travel and Tourism Council, its President/CEO and its HR director. Proceedings were heard by an Employment Tribunal in October 2022, which dismissed the s.103A (automatic unfair dismissal) and s.47B (detriment) claims.

Procedural posture: The claimant appealed to the EAT challenging numerous factual and legal findings.

Nature of the claim / relief sought: The claimant sought a finding that his disclosures were protected qualifying disclosures and that his dismissal and other acts were contrary to sections 103A and 47B ERA 1996.

Issues before the EAT: The appeal focused on (i) whether the ET improperly decided a fact contrary to an admission (PD3), (ii) the correct legal test for onward transmission of disclosures to a decision-maker, (iii) whether the ET erred in applying the reasonable belief/public interest test to PD6, (iv) whether the ET misdirected itself by relying on what the respondents believed about whistleblowing when deciding causation, (v) whether the ET was entitled to find the claimant had made inappropriate sexualised comments to a colleague when that had not been put to him, and (vi) whether the ET's findings about the CEO's understanding of allegations were supported by evidence.

Court’s reasoning and conclusions:

• The EAT held that tribunals must adhere to pleaded admissions and lists of issues; it was an error for the ET to investigate and find that PD3 had not occurred where the respondents had admitted that the claimant had made the communication, absent an application to withdraw the admission. Nevertheless, the EAT concluded that the error was immaterial because the ET's findings on causation and the limited role of disclosures in the respondents' decision-making meant the same result would have followed.
• On onward transmission, the EAT rejected the claimant's submission that a decision-maker need only know that a disclosure had been made. The tribunal correctly required that person B have some knowledge of the substance of the disclosure such that the employer knew what the worker was complaining about; mere knowledge that a disclosure occurred was insufficient.
• On PD6 and public interest, the EAT held the ET correctly applied the statutory two-stage evaluation: first whether the communication disclosed information with sufficient factual content to tend to show a listed matter (s.43B), and then whether the claimant subjectively and reasonably believed it was in the public interest. The ET’s findings that PD6 lacked sufficient information were not shown to be erroneous and, in any event, its public interest conclusion was not challenged on appeal.
• The EAT found it was unfair for the ET to make an adverse finding about sexualised comments where that was not put to the claimant in cross-examination; that ground of appeal succeeded but was treated as a discrete error that did not infect the remainder of the decision.

Outcome: The EAT allowed the appeal in part (successful grounds: the admission/PD3 error and the unfair sexualised-comments finding) and dismissed the remaining grounds; it did not remit the case as the errors were immaterial to the result.

Appeal allowed in part. The EAT allowed grounds that the ET erred by deciding PD3 had not been made despite a respondent admission, and that it unfairly made a finding about inappropriate sexualised comments not put to the claimant; but it dismissed the other grounds. The ET was correct to require that an onward recipient have awareness of the substance of a disclosure (not merely knowledge that a disclosure occurred) before whistleblowing protection can be attributed to that decision-maker. The identified errors were immaterial to the overall outcome and no remittal was ordered.

Appeal from the Employment Tribunal (London South) decision heard 10-14 and 17-18 October 2022 (judgment sent 14 December 2022) which dismissed the claimant's claims under s.103A and s.47B of the Employment Rights Act 1996. The present decision is the EAT judgment [2024] EAT 42.