ALM Medical Services Ltd v Bladon [2002] IRLR 807 CA
Sim v Manchester Action on Street Health (unreported) EAT/0085/01
Parkins v Sodexho [2002] IRLR 109 EAT
Aspinall v MSI Mechforge Ltd (unreported) EAT/891/01

The Public Interest Disclosure Act 1998 has now been scrutinised for the first time by the Court of Appeal which has used the opportunity to lay down some important general principles in whistleblower cases.

In ALM Medical Services Ltd v Bladon, the Court of Appeal has held that in a protected disclosure case, where the employee has not served the qualifying period needed to acquire the general right not to be unfairly dismissed, 'the critical issue is not substantive or procedural unfairness, but whether all the requirements of the protected disclosure provisions have been satisfied on the evidence.' While this may appear to be a statement of the obvious, it is suggested that there was good reason to make it: the whistle-blowing provisions within Part IVA Employment Rights Act 1996 require both parties and tribunals to focus at an early stage on the different factual issues which arise in this type of case, in contrast to those which arise in 'standard' unfair dismissal claims. The process is very different from a range of reasonable responses test applicable in unfair dismissal.

So what are the requirements of the protected disclosure provisions? First, an employee must prove that he made a specific disclosure relied upon. It is suggested that this means that he must show to whom, when and where such a disclosure was made.
Secondly, an employee must prove that the disclosure made was a disclosure qualifying for protection within s.43B(1) ERA, which requires, in respect of each disclosure that:

the disclosure was a disclosure of information;
the disclosure was made to the employer;
the applicant had a reasonable belief when making the disclosure that it tended to show one of the matters within s.43B(1);
the disclosure was made in good faith.
The different elements of the second requirement demonstrate that the requirements for statutory protection are carefully drawn, because the aim is to balance the promotion of the public interest with the respective interests of employers and employees.

The intricate nature of the second requirement means that particularly careful drafting of the IT1 is required in Whistleblowing cases. A cautionary tale is provided by Sim v MASH EAT/0085/01, in which it was held that no claim under s.103A ERA (automatic unfair dismissal) or s. 47B ERA (victimisation) had in fact been brought by the use of the following words in the IT1:

'I believe I was dismissed for reasons which may be contrary to the PIDA 1998 and were concerned with financial probity and safeguarding the health and safety of employees and clients of MASH.'

Applicants should also consider whether the subject matter of the disclosure is a qualifying disclosure within s.43B(1). It may be that a broad and purposive interpretation of the subjects within s. 43B(1)(a) - (e) will be adopted by tribunals. In Parkins v Sodexho Ltd [2002] IRLR 109, the EAT held that s. 43B(1)(b), which defines a qualifying disclosure as including 'any breach of information which, in the reasonable belief of the worker making the disclosure, tends to showÉthat a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject' was drawn very broadly and included obligations arising out of the contract of employment. Mr. Parkins complained that there was a lack of adequate supervision on site, which breached his contract of employment; this complaint was held to be a qualifying disclosure.

Thirdly, an employee must prove causation ie. did the disclosure lead to dismissal or victimisation.

In many cases, the evidence will focus on the issue of causation of the dismissal or detriment suffered by the employee. In Aspinall v Mechforge Ltd EAT 891/01, the tribunal found that the steps taken by the employer were caused by a perceived breach of confidentiality. The worker had arranged for a video to be taken of how a particular hoist worked to further a personal injury claim, but the video also revealed a secret production process. The EAT held that, for there to be detriment under s.47B ERA 'on the ground that the worker has made a protected disclosure', the protected disclosure has to be 'the real reason, the causa causans, the motive of the treatment complained of', borrowing the words of Lord Scott in Chief Constable of West Yorkshire v Khan [2001] ICR 1065, the leading case on causation in victimisation cases brought under s. 2(1) Race Relations Act 1976.

The EAT appeared to hold that the same test of causation applied where the claim was that the reason or the principal reason for dismissal was the making of a protected disclosure, although it is not clear why this necessarily follows in the absence of the same statutory wording in s.103A ERA.

On the issue of causation, Bladon arguably underestimates the importance of establishing what are the employer's procedures, and why they have been breached. Applicants should always look for breaches of any procedures implemented by the employer prior to dismissal. An employer is unlikely to advertise his motive for dismissal where a protected disclosure has been made. By analogy with the principles on the drawing of inferences established in cases brought under the RRA 1976 (such as Anya v University of Oxford IRLR [2001] 377), it can be argued that the tribunal could infer that the reason or the principal for dismissal was the protected disclosure relied upon, where it is proved that there is an unexplained breach of (or complete non-compliance with) a procedure relied upon by the employer.

Procedural developments

The Court of Appeal in Bladon recommended that there should be a directions hearing in all protected disclosure cases. Apart from the obvious saving of time and costs at the final hearing, experience suggests that an interlocutory hearing will, on balance, favour Applicants for two reasons:

The actual disclosures made can be defined at the outset. Since the disclosures will then be set down in the Decision of the interlocutory hearing, a subsequent tribunal will see them before the Applicant's evidence is given. It is more likely that the evidence of the Applicant as to the making of these disclosures will be accepted if it is consistent with the stated disclosures.

The Respondent may be required to expand on their causation defence. This explanation may well open the way for requests for disclosure of specific documentation e.g. the incident reporting procedure or the disciplinary procedure. It will enable the Applicant to consider how this explanation can be rebut

Remedies

The other crucial distinction between so-called ordinary unfair dismissal and whistleblower cases is the unlimited compensation available under the PIDA. The statutory cap does not apply and where an Applicant can establish his or her losses, the compensation can run into hundreds of thousands of pounds.