The EAT in the recent decision of Blackbay Ventures Ltd t/a Chemistree v Gahir set out an approach that Employment Tribunals should take when considering protected disclosure cases, which may also assist those representing clients in such cases or those bringing such cases.
The EAT identified a number of steps that may be taken by the Tribunal, which can be adapted to present a more watertight case, as follows:
a. Each disclosure should be separately identified by reference to date and content.
b. Each alleged failure or likely failure to comply with a legal obligation, or matter giving rise to the health and safety of an individual having been or likely to be endangered as the case may be should be separately identified.
c. The basis upon which each disclosure is said to be protected and qualifying should be addressed.
d. Save in obvious cases if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation. It is not sufficient as here for the Employment Tribunal to simply lump together a number of complaints. ,
e. The Employment Tribunal should then determine whether or not the Claimant had the reasonable belief referred to in S43 B1 of ERA 1996 under the ‘old law’ whether each disclosure was made in good faith; and under the ‘new’ law introduced by S17 Enterprise and Regulatory Reform Act 2013 (ERRA), whether it was made in the public interest.
f. Where it is alleged that the Claimant has suffered a detriment, short of dismissal it is necessary to identify the detriment in question and where relevant the date of the act or deliberate failure to act relied upon by the Claimant. This is particularly important in the case of deliberate failures to act because unless the date of a deliberate failure to act can be ascertained by direct evidence the failure of the Respondent to act is deemed to take place when the period expired within which he might reasonably have been expected to do the failed act.
g. The Employment Tribunal under the ‘old law’ should then determine whether or not the Claimant acted in good faith and under the ‘new’ law whether the disclosure was made in the public interest.
These sorts of cases are notoriously hard to establish. Detriments because of whistleblowing are often covert.