Elena Bibescu v Clare Jenner Limited t/a Jenner’s

For a disclosure to qualify under section 43B of the Employment Rights Act 1996, a tribunal must first determine the worker’s actual belief that the disclosure was in the public interest. Motive does not answer that question. If the belief was genuinely held, the tribunal must assess its reasonableness from the worker’s particular position, rather than substitute its own view.

The same approach applies to the worker’s belief that the information tended to show a statutory matter. A tribunal errs if it decides only whether the alleged wrongdoing was proved. Under section 103A, however, the tribunal’s task is to identify the principal reason for dismissal; a rational finding on that factual issue will stand.

The claimant, an accountant employed by the respondent, was dismissed in June 2020. She alleged whistleblowing detriment under section 47B and automatic unfair dismissal under section 103A of the Employment Rights Act 1996.

She relied on information given on 8 June 2020 about a subcontractor’s director disqualification and professional status. The Employment Tribunal dismissed the section 103A claim, finding that performance and the working relationship were the reasons for dismissal. Its operative judgment did not determine the section 47B claim, although its reasons indicated that it considered the disclosures unprotected.

The appeal concerned whether the Tribunal had applied section 43B lawfully and whether it had erred in its finding of the principal reason for dismissal.

1. Appeal allowed in part. The dismissal of the section 103A claim stood. The Tribunal correctly identified that section 103A of the Employment Rights Act 1996 required it to determine the principal reason for dismissal. Its finding that the claimant was dismissed because of performance and her inability to work with the subcontractor was a rational factual conclusion open on the evidence.

2. The Tribunal erred in its treatment of section 43B. It had to decide whether the claimant genuinely believed that her disclosures were in the public interest, whatever her motive. Its reasons instead concentrated on an inferred private motive and did not make the required finding about her state of mind.

3. If such a belief was genuinely held, its reasonableness had to be assessed from the claimant’s particular position. The Tribunal appeared to substitute its own view. It made the same error when considering whether the claimant reasonably believed that the information tended to show a matter within section 43B(1)(a) to (f): it decided whether the alleged matters had actually been proved, without finding what the claimant believed at the time.

4. Those errors vitiated the section 43B conclusions relevant to section 47B. Since the Tribunal had not formally disposed of the section 47B complaint, it remained undetermined. All pleaded elements of that complaint were remitted to a differently constituted Tribunal. A fresh tribunal was required because the elapsed time, the earlier errors and the appearance of fairness made remittal to the same panel inappropriate.

5. Observation: Employment Tribunal reasons should determine every complaint and record the conclusions of every panel member.

• Employment Appeal Tribunal: allowed the appeal concerning section 47B of the Employment Rights Act 1996 and remitted that complaint to a differently constituted Employment Tribunal; dismissed the challenge to the section 103A dismissal.
• Employment Tribunal (West Midlands): in a reserved liability judgment dated 21 September 2022, dismissed the claims under sections 103A and 100(1)(d). It did not determine section 47B in the operative part of its judgment.