Ian Ritson v Milan Babic Architects Limited

A worker must reasonably believe that a disclosure tends to show a relevant legal failure. Where the asserted failure is prospective, “likely” requires a probability, rather than a mere possibility or risk. A disclosure must also be made in the worker’s reasonable belief that it is in the public interest.

An Employment Tribunal which finds that the worker had no subjective public-interest belief need not evaluate the objective reasonableness of that belief or apply every factor identified in Chesterton. An appellate court should not infer legal error merely because a tribunal did not expressly state an authority, where its reasoning discloses no substantive error.

In protected-disclosure claims, conduct associated with a disclosure may be separable from the disclosure itself. The statutory question remains what actually motivated the decision-maker.

The claimant, an architect with less than two years’ service, was dismissed for redundancy shortly after the introduction of the Coronavirus Job Retention Scheme. He relied on two text messages which raised concerns about working while furloughed.

The Employment Tribunal dismissed claims for automatic unfair dismissal under sections 103A and 105 of the Employment Rights Act 1996, and for protected-disclosure detriments under section 47B. It found that neither message was a qualifying disclosure. It also found that dismissal and selection were caused by redundancy and the claimant’s status as one of the two highest-paid employees, not by any disclosure.

The claimant appealed, principally challenging the findings on qualifying disclosure, public interest, perversity and adequacy of reasons.

1. Appeal dismissed. The Employment Tribunal made permissible findings that the two messages were not qualifying disclosures. The claimant’s evidence showed, at most, concern about a possible future breach of the furlough rules. That did not meet the requirement that a breach of legal obligation be likely, namely more probable than not.
2. The Tribunal was entitled to reject the claimant’s evidence that he had the wider public interest in mind. It permissibly found that the messages concerned only the claimant and the respondent. Since there was no subjective belief that the disclosures were in the public interest, the objective stage and the four Chesterton factors were not determinative.
3. The Tribunal had correctly stated the relevant principles. Its failure expressly to apply or refer to every part of the guidance in Chesterton Global Ltd t/a Chestertons v Nurmohamed [2018] ICR 731 did not disclose an error of law. Nor did the absence of an express reference to Kraus v Penna [2004] IRLR 260 establish error where the omitted principle could not have affected the result.
4. The perversity challenge was an impermissible attempt to reargue permissible findings of fact. The Tribunal’s reasons were adequate: they identified why the qualifying-disclosure claims failed, why redundancy was the principal reason for dismissal, why the claimant was selected, and why the proven detriments were not caused by the alleged disclosures.
5. There was, in any event, no challenge to the Tribunal’s causation findings. Its distinction between the alleged disclosures and the claimant’s perceived inflexibility about a discrete work issue was permissible. The latter was capable of being genuinely separable from any protected disclosure.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 95.
• Employment Tribunal (London South): Judgment dated 14 February 2023, sent to the parties on 16 February 2023. The Tribunal dismissed the claims for protected-disclosure automatic unfair dismissal and detriment.