Representation:

1. the correct test for deciding whether a disclosure is a qualifying disclosure for the purposes of the whistleblowing provisions of Employment Rights Act 1996 s.43B is that it must have been reasonable for the worker to believe that the factual basis of what was disclosed was true and that it tends to show a relevant failure, even if the worker was wrong, but reasonably mistaken.

2. the factual accuracy of an allegation may be important in determining whether the worker held the reasonable belief that is required by ERA 1996 s.43B(1). It is difficult to see how a worker can reasonably believe that an allegation tends to show that there has been a relevant failure if he knew or believed that the factual basis was false. Nevertheless reasonable belief must be based on facts as understood by the worker, not as actually found to be the case.

For relevant general notes see Whistleblowing .

Outline of facts:-

Geoffrey Darnton was employed as a full-time management lecturer at Surrey European Management School ("SEMS") in March 1999. He clashed with SEMS head Professor Gamble and in August 1999 terms were agreed for him to leave as from 8th September 1999. He was given a severance payment and a 12 month associate lectureship at £20,000. The proper compromise agreements was used.

On 14th October 1999 Mr Darnton resigned from the teaching part of this lectureship and found a permanent job in Bournemouth. SEMS regarded the agreement to find him £20,000 of work at an end. Mr Darnton disagreed and on 19th January 2000 wrote to the Vice Chancellor demanding additional compensation and the suspension of Professor Gamble. On 28th January 2000 Mr Darnton was told his services were no longer required.

Mr Darnton brought an unfair dismissa claiml, alleging that his dismissal was automatically unfair because it was by reason of his letter of 19 January, which amounted to a "protected disclosure" for the purposes of ERA 1996 s.103A as amended. Mr Darnton contended his disclosures fell within ERA 1996 s.43B because in his reasonable belief they tended to show that a criminal offence had been committed or that the university was in breach of various legal obligations.

The employment tribunals considered the various allegations contained in the letter to the university with a view to determining whether they were factually correct. As they were not, the tribunal held that Mr Darnton had not made a protected disclosure.

Mr Darnton appealed to the EAT.

Decision:-

The EAT allowed the appeal to the extent that it remitted the case to a differently constituted employment tribunal.

The EAT held that the ET erred in finding that Mr Darnton had not made a disclosure qualifying for protection within the meaning of ERA 1996 s.43B(1) because the allegations he claimed amounted to a qualifying disclosure were not factually correct.

A qualifying disclosure means any disclosure which in the "reasonable belief" of the worker making it tends to show a relevant failure. For there to be a "qualifying disclosure", it must have been reasonable for the worker to believe that the factual basis of what was disclosed was true and that it tends to show a relevant failure, even if the worker was wrong, but reasonably mistaken.

The EAT held that determination of the factual accuracy of the allegations may be an important tool in determining whether the worker held the reasonable belief that is required by ERA 1996 s.43B(1) in that it is extremely difficult to see how a worker can reasonably believe that an allegation tends to show that there has been a relevant failure if he knew or believed that the factual basis was false. However reasonable belief must be based on facts as understood by the worker, not as actually found to be the case.

In the present case, the employment tribunal departed from the statutory test by not asking whether the applicant held the reasonable belief that what he was disclosing tended to show a relevant failure, but instead asking itself whether the factual allegations were correct.