Employment Law Cases
Specificity required to be a qualifying disclosure
Twist DX Ltd v Armes
Deciding whether a disclosure attracts protection under whistleblowing law involves looking at the context in which it was made, rather than simply the words used. And it is not necessary for such a disclosure expressly to identify the specific type of wrongdoing alleged on the part of the employer.
Rights to bring a whistleblowing claim arise when someone suffers a detriment because they made a protected disclosure. Such a disclosure involves a worker disclosing information which is a qualifying disclosure and is made in one of the protected ways. To be a qualifying disclosure, the worker must reasonably believe that the information disclosed tends to show one or more of the following specified types of wrongdoing (s. 43B(1) of the Employment Rights Act 1996):
- that a criminal offence has been committed, is being committed, or is likely to be committed
- that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which they are subject
- that a miscarriage of justice has occurred, is occurring, or is likely to occur
- that the health or safety of any individual has been, is being, or is likely to be endangered, or
- that the environment has been, is being, or is likely to be damaged
Mr Armes, a research scientist and MD of Twist DX, was dismissed. He claimed to have raised concerns in various emails about the accuracy of a diagnostic tool produced by his employer that was used in a wide range of clinical and healthcare settings. Among his claims post-dismissal were that he’d been subjected to various detriments for having made seven protected disclosures and/or raised health and safety issues. At a preliminary hearing, the employer applied for his claims to be struck out – on the basis that they had no reasonable prospect of success. It argued that Mr Armes wouldn’t be able to show that he’d made a qualifying disclosure because his emails didn’t identify the legal obligation or criminal offences which he claimed the company had breached. The tribunal, it argued, was confined only to considering the words he’d used in the emails. The tribunal refused to strike out the claims and the employer appealed. It argued that the tribunal had not sufficiently considered what information, if any, was disclosed in the communications relied on by Mr Armes, and whether that information was capable of being reasonably believed to show any of the matters specified in s. 43B(1).
The appeal was upheld: six of the alleged disclosures had no chance of success but one would be sent back to the tribunal to reconsider.
However, in so doing, the EAT considered two aspects of the test for whether a disclosure will amount to a ‘qualifying disclosure’: what types of information may be considered and the level of specificity required.
As to the wording of the disclosures, the EAT disagreed with the employer’s arguments and endorsed the approach of the Court of Appeal in Kilraine v London Borough of Wandsworth – that a tribunal should assess any disclosure in the light of the context in which it was made. Mere words spoken tell only part of the story as to whether what someone says constitutes a qualifying disclosure. Here the tribunal had looked at the witness statements as well as the words used by Mr Armes and that was the correct approach.
As to the level of specificity required for something to amount to a qualifying disclosure, the information must have enough factual content and be sufficiently specific – but it does not have to expressly accuse an employer of acting unlawfully or criminally, nor does it have to be obvious that this is what an employee is alleging. The question is: does the worker reasonably believe that a disclosure tended to show one of more of the specific types of wrongdoing listed in s. 43B(1)? It is not directly relevant to the test whether the type of wrongdoing alleged was clear to, or even understood by, the person to whom the disclosure was made. While from an evidentiary point of view, it may be easier for an employee to show that they have made a protected disclosure if they have specifically complained about criminality or breach of health and safety law, there is no statutory requirement actually to do so.
On the facts of this case, it was arguable that one of the emails Mr Armes sent referring to potentially regulatory concerns was capable of being a protected disclosure and this would be reconsidered by the tribunal.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0030_20_2310.html
This decision will not help employers who are already seeing an upsurge in whistleblowing cases – due in part to the availability of interim relief, the fact that an employee does not need two years’ service and the availability of unlimited compensation. Unfortunately, many fairly innocuous emails received from employees can, once a relationship has soured, be interpreted as tending to show one or more of the specific types of wrongdoing. The question then is whether the employee reasonably believed that it did and whether the action taken by the employer was a detriment or was simply something that was planned/intended anyway.