when has the whistle been blown? Protected disclosures reviewed in Martin v Southwark LB
Anyone who has tried to run a whistleblowing claim will know that the easy part is in proving that the Claimant has made a whistleblowing disclosure. A Claimant just has to show that they have disclosed information which in their reasonable belief shows that one out of six forms of wrongdoing have been committed. The disclosure must also be in the public interest which is widely defined to be anything which is not merely personal to the Claimant.
There was a useful reminder of this from the Employment Appeal Tribunal (EAT) in the case of Martin v Southwark LB. Mr Martin was a schoolteacher who was concerned about the working hours of himself and his colleagues which he considered exceeded legal time limits. He firstly raised this issue tentatively with his Head Teacher. When his Head Teacher ignored his concerns he tried again, this time e-mailing his Head Teacher with his concerns in writing.
Still ignored, Mr Martin then notified the School Governors of the issue via e-mail. He then notified the Local Authority. When he was failed to obtain any meaningful recognition of his complaint he finally triggered ACAS conciliation and notified both the School Governors and the Local Authority that he had done so. Mr Martin claimed that he had made a total of 5 whistleblowing disclosures and that he was then subjected to various acts of negative treatment including a poor appraisal. He claimed these as unlawful ‘detriments’ which resulted from his disclosures.
Mr Martin’s claims were considered by London South Tribunal. The tribunal found that Mr Martin had not, in fact, made protected disclosures. The tribunal’s reasoning was slightly different for each claimed disclosure but essentially boiled down to the facts that a) his initial disclosures were very tentative which suggested he did not have a ‘reasonable belief’ that the law had been breached and b) his disclosures were not in the public interest as he was pursuing a personal agenda.
The Employment Appeal Tribunal found that the tribunal’s logic was faulty and that the tribunal had failed to apply a ‘structured approach’. The tribunal had imposed its own view of whether the Claimant’s belief was reasonable rather than considering matters from his perspective. It had wrongly found that the fact that Mr Martin may have had a personal agenda could not mean that he was also pursuing a matter which could be of benefit to others. Mr Martin’s claim was remitted back to a new employment tribunal panel to consider matters afresh.
This case is a useful one for whistleblowers as it reaffirms the fact that there is a low threshold for proving that a protected disclosure has been made. The real legal mountain to climb is in proving that making a protected disclosure has caused a particular workplace detriment. That mountain still lies ahead of Mr Martin but he has at least reached base camp.
This blog was prepared by Mark Alaszewski, employment solicitor at didlaw.