Aman Khan v Novai Limited & Anor

An Employment Tribunal determining whether communications are protected disclosures must assess the statutory elements with sufficient clarity to show which elements fail and why. A conclusion that an email contains no disclosure of information cannot stand where the communication contains material capable of bearing on alleged wrongdoing, unless the Tribunal explains its analysis of the statutory questions.

The Tribunal must also give adequate reasons for a dispositive finding that a dismissal decision pre-dated the alleged disclosures. It must resolve material evidence and submissions that bear on the timing and reason for dismissal. Fundamental errors in both assessments may require remission for a complete rehearing before a differently constituted Tribunal.

The claimant, formerly the respondent company's chief financial officer and chief executive officer, alleged that he made protected disclosures in January 2022 concerning diagnostic data, fundraising and directors' legal obligations. He was dismissed on 31 January 2022.

The Employment Tribunal rejected the protected-disclosure and detriment complaints. It held that none of the communications was a qualifying or protected disclosure and that a decision to dismiss had in any event been made in December 2021, before the alleged disclosures. It later refused reconsideration when the claimant sought to rely on a transcript concerning a discussion on 3 February 2022.

The claimant appealed both decisions. The central issues were whether the Tribunal had lawfully assessed the alleged disclosures and whether it had adequately reasoned its finding as to when the dismissal decision was made.

1. Appeals allowed. The Employment Tribunal's dismissal of the protected-disclosure complaints could not stand. Its analysis repeatedly stated that there was no disclosure of information, or no qualifying disclosure, without making clear whether it had instead rejected another statutory element. It did not assess the pleaded communications, including their context and possible cumulative effect, by reference to the necessary qualifying-disclosure questions.

2. Under section 43B of the Employment Rights Act 1996, the Tribunal had to distinguish the existence of a disclosure of information from whether the claimant reasonably believed it tended to show wrongdoing, whether that belief was reasonable, and whether he reasonably believed the disclosure was in the public interest. A rigid sequence was not required, and failure expressly to follow the structure in UKEAT/0044/19/OO was not itself an error of law. However, the reasons in this case did not demonstrate that the necessary questions had been answered.

3. The alternative finding that a decision to dismiss had been made before the board meeting on 15 December 2021 was also inadequately reasoned. The Tribunal's findings said only that a decision appeared either to have been made or to have been under consideration subject to legal advice. It gave no explanation for its later firm conclusion that a decision had been taken. It also failed to address the substantial body of evidence and submissions said to indicate a decision in late January 2022.

4. The errors were fundamental and required the matter to be considered afresh. Applying the principles in [2004] IRLR 763, remission to a differently constituted Employment Tribunal was proportionate. The remitted Tribunal would determine whether the transcript of the 3 February 2022 recording could be relied on.

• Employment Appeal Tribunal: Allowed the appeals from the liability and reconsideration judgments and remitted the protected-disclosure complaints for a complete rehearing before a new Tribunal: [2026] EAT 19.
• Employment Tribunal: Dismissed the protected-disclosure complaints in a judgment sent on 15 April 2024, and refused reconsideration in a judgment sent on 19 June 2025.