Rose Southam v Berkshire Healthcare NHS Foundation Trust

A qualifying disclosure must contain enough factual content and specificity to be capable of tending to show a listed failure, or to be reasonably believed to do so. A tribunal must engage with the actual information relied on and explain why it does not meet that standard. An error in assessing whether a disclosure is protected does not require the decision to be set aside where positive findings about the reasons for every potentially affected act leave no possibility that the disclosure influenced it.

Rose Southam, an employee of Berkshire Healthcare NHS Foundation Trust, claimed that she had made protected disclosures and suffered detriments for doing so. She also claimed constructive unfair dismissal. The Employment Tribunal dismissed her claims, finding two protected disclosures in its original decision and one more on reconsideration, but no actionable detriment or dismissal.

On appeal, the live challenge was narrowed to whether the tribunal had erred in assessing two further claimed disclosures, PD3 and PD9, in light of a note dated 14 December 2017. The question was whether any error could affect the dismissal of the only detriment complaints still potentially in issue.

1. Both appeals were dismissed. The appeal against the original liability decision and the appeal against the reconsideration decision did not identify an error undermining the dismissal of any complaint.
2. For a qualifying disclosure under the Employment Rights Act 1996, the information must have sufficient factual content and specificity to be capable of tending to show a listed failure, or reasonably to be believed to tend to show one. The tribunal’s reasoning on PD3 did not explain why the evidence failed that standard. It had found that the subject was discussed, but did not address the note’s assertion that prioritising administration meant new patients took longer to be seen. Its comments about the meeting’s context also required explanation. The tribunal likewise erred on PD9 by saying the matter was absent from the 14 December note, which contained substantially overlapping information. The EAT did not decide that either disclosure met all the requirements for protection; it remained open to the tribunal to find that they did not. ([2018] EWCA 1436; [2018] ICR 50; paras 29–41.)
3. Those errors could not affect the result. Once ground 1 was abandoned, only detriment complaints D2 and D9.2 could potentially be affected by PD3 or PD9. For D2, the tribunal’s findings attributed the missed supervision meetings to workload, occasions when Ms Southam declined meetings, and difficulties in the working relationship. Read as a whole, those findings left no room for PD3 or PD9 to have influenced the conduct. For D9.2, the tribunal accepted that the decision not to interview Ms Southam was explained by the other candidate’s relevant experience, and found that the decision-maker was unaware of her disclosures when the application was considered. The 2017 report to another manager did not establish awareness in 2019. The positive findings therefore excluded any possibility that the claimed disclosures influenced either act. No remittal was required. (paras 54–60.)

1. Employment Appeal Tribunal — dismissed the appeals against the original liability decision and the reconsideration decision: [2026] EAT 150 .
2. Employment Tribunal (original liability decision) — dismissed the claims for detriment, constructive unfair dismissal and unfair dismissal. Citation not stated in the judgment.
3. Employment Tribunal (reconsideration decision) — found one further claimed disclosure to be protected but dismissed the reconsideration applications; the claims remained unsuccessful. Citation not stated in the judgment.