The claimant was an employee of the respondent education authority until she was suspended pending a disciplinary investigation on charges that she had made unfounded allegations against colleagues and thereafter dismissed on grounds of redundancy. She issued proceedings alleging that she had been unfairly dismissed and that she had been subject to other detriment because she had made protected disclosures within section 43A of the Employment Rights Act 1996. These were, inter alia, that the education authority was failing in its legal obligations in respect of bullying and harassment (“the third disclosure”) and that the claimant’s line manager had not supported her when she, the claimant, had raised a safeguarding issue in relation to a school (“the fourth disclosure”). The employment tribunal decided as a preliminary issue to strike out, inter alia, the parts of the claim relating to the third and the fourth disclosures on the grounds that they did not amount to disclosures of “information” within section 43B(1) of the 1996 Act but amounted only to the making of allegations, and so were not qualifying disclosures for the purposes of section 43B(1) or protected disclosures for the purposes of section 43A. Having heard the remainder of the claim, the tribunal found that the claimant had been dismissed on the ground of redundancy, rather than by reason of any protected disclosure, and that, although her dismissal had been unfair because of a lack of consultation, no compensation was payable because she would have been dismissed on that ground even had she been consulted. The Employment Appeal Tribunal dismissed the claimant’s appeal. The claimant appealed on the grounds that the tribunal had erred in concluding that the third and fourth disclosures were not protected disclosures.
On the claimant’s appeal—
Held, appeal dismissed. The concept of “information” as used in section 43B(1) of the Employment Rights Act 1996 was capable of covering statements which might also be characterised as allegations; section 43B(1) should not be glossed to introduce into it a rigid dichotomy between “information” on the one hand and “allegations” on the other. However, although sometimes a statement which could be characterised as an allegation would also constitute “information” and amount to a qualifying disclosure within section 43B(1), not every statement involving an allegation would do so. In order for a statement or disclosure to be a qualifying disclosure for the purposes of section 43B(1), it had to have a sufficient factual content and specificity such as was capable of tending to show one of the matters listed in that subsection. Whether an identified statement or disclosure in any particular case met that standard would be a matter for evaluative judgment by a tribunal in the light of all the facts of the case and the particular context in which it was made. In the present case, the tribunal’s decision in relation to the third disclosure, that it did not contain sufficient relevant factual content to meet the objective requirement in section 43B(1), was correct. In respect of the fourth disclosure, the claimant had not satisfied the subjective requirement in section 43B(1) that she had reasonably believed at the time of the disclosure that the information in it tended to show one of the matters listed in that subsection. Accordingly, neither the third nor the fourth disclosure were qualifying disclosures within section 43B(1) of the 1996 Act (paras 30, 35–36, 38, 41, 43, 46, 48, 49).
Christopher Milsom and Rachel Barrett (instructed by Neves Solicitors llp, Luton) for the claimant.
Susan Belgrave (instructed by Sharpe Pritchard llp) for the employer.