Ian Ritson v Milan Babic Architects Limited

The appeal concerned whether two text messages from the claimant amounted to qualifying protected disclosures under the Employment Rights Act 1996, and whether detriments and dismissal were on the grounds of those disclosures. The Employment Appeal Tribunal upheld the Employment Tribunal's findings that the messages did not amount to qualifying disclosures because the claimant lacked a reasonable belief that a legal obligation had been, was being, or was likely to be breached and that the disclosures were not made in the public interest (section 43A and section 43B ERA). The ET's alternative findings were that, on causation, the claimant was dismissed for redundancy and selected because he was one of the highest paid employees; separability between any alleged disclosure and the respondent's operational reasons was applied (sections 103A, 105 and section 47B ERA). The EAT found no error of law, no perversity in the factual findings and adequate reasons were given.

Background and parties:

• The claimant, an architect employed from 23 April 2018, was dismissed on 10 April 2020 with under two years' service. He was furloughed under the Coronavirus Job Retention Scheme and exchanged texts with the respondent's controlling director on 3 April 2020 about whether he could work while furloughed.
• The claimant brought Employment Tribunal claims alleging automatic unfair dismissal for making protected disclosures, unfair selection for redundancy, and detriments for protected disclosures (relying on sections 43A, 43B, 47B, 103A and 105 ERA).

Procedural posture:

• The Employment Tribunal (London South, Employment Judge Abbott) heard the claim on 18–20 January 2023 and dismissed it in a judgment dated 14 February 2023. The claimant appealed to the Employment Appeal Tribunal.

Issues before the EAT:

1. Whether the two text messages were qualifying disclosures within the meaning of section 43B ERA (including whether the claimant reasonably believed a legal obligation was being or likely to be breached).
2. Whether the disclosures were made in the public interest (applying Chesterton factors).
3. Whether detriments were done on the grounds of protected disclosures and whether dismissal/selection for redundancy was for that reason (causation and separability).
4. Whether the ET erred in law, made perverse factual findings, or failed to give adequate reasons.

Court's reasoning and conclusions:

• The EAT held that the ET permissibly found the claimant lacked the necessary subjective and reasonable belief that a legal obligation was likely to be breached; the claimant’s own evidence suggested at most a mere possibility rather than probability (consideration of Kraus). The ET’s factual findings that the claimant’s concerns were limited to his and the employer’s interests, not the wider public interest, were permissible.
• The ET had addressed the Chesterton public interest guidance and was entitled to conclude the claimant failed the subjective element; consequently the Chesterton factors were largely academic. The EAT emphasised appellate restraint where correct principles were stated and applied.
• The ET found five detriments proven but concluded none were on the grounds of protected disclosures. It found dismissal was for redundancy and selection for redundancy was because the claimant was one of the highest earners. The separability principle (Kong and Fecitt authorities) was applied to separate conduct from protected disclosure. The EAT found no error of law, no perversity and that reasons were adequate (Meek compliance).

Appeal dismissed. The Employment Appeal Tribunal found that the Employment Tribunal permissibly concluded the claimant’s texts were not qualifying disclosures because he lacked a reasonable belief of a likely breach of legal obligation and did not hold a subjective belief that the disclosures were in the public interest. The ET’s findings on causation, detriments and separability were permissible and adequately reasoned, and no legal error or perversity was shown.

Appeal to the Employment Appeal Tribunal from the Employment Tribunal (London South) judgment dated 14 February 2023 following a hearing on 18–20 January 2023. Neutral citation of this appeal: [2024] EAT 95.