If an employee is dismissed for making a 'protected disclosure' under section 103A and Part IVA of the Employment Rights Act 1996 then the dismissal is automatically unfair. The disclosures qualifying for protection in section 43B of the 1996 Act include a range of matters including: the committal or likely committal of a criminal offence, failure to comply with any legal obligation (including endangering the health and safety of any individual) and damaging the environment.
Under section 43C of the 1996 Act a qualifying disclosure must be made by the worker 'in good faith' to his or her employer. However, the Court of Appeal on 7 March 2007 in Babula v Waltham Forest College [2007] EWCA Civ 174 had to decide whether the employee had to point to an actual offence or legal breach or whether a reasonable belief on his or her part would be sufficient.
Wall LJ decided (agreeing with the Employment Appeal Tribunal in Darnton v University of Surrey [2003] IRLR 133) that 'a belief may be reasonably held and yet be wrong'. In his view, in the case of a whistleblower who reasonably believes that a criminal offence has been committed:
'Provided his belief (which is inevitably subjective) is held by the Tribunal to be objectively reasonable, neither (1) the fact that the belief turns out to be wrong - nor, (2) the fact that the information which the claimant believed to be true (and may indeed be true) does not in law amount to a criminal offence - is, in my judgment, sufficient, of itself, to render the belief unreasonable and thus deprive the whistle blower of the protection afforded by the statute.'
As Wall LJ pointed out, the purpose of the statute is to encourage responsible whistleblowing. Therefore to:
'. . .expect employees on the factory floor or in shops and offices to have a detailed knowledge of the criminal law sufficient to enable them to determine whether or not particular facts which they reasonably believe to be true are capable, as a matter of law, of constituting a particular criminal offence seems to me both unrealistic and to work against the policy of the statute.'
So whilst an employee's belief will be subjective, equally it must be reasonable.
An employment tribunal had to make three key findings:
- Whether or not the employee believes that the information disclosed meets the relevant statutory criteria in section 43B(1)(a) to (f) of the 1996 Act.
- To decide objectively whether or not that belief is reasonable.
- To decide whether or not the disclosure is made in good faith.
So the position seems to be that an employee may be blissfully and beatifically wrong in believing that a relevant infraction has been committed, providing that his or her belief is objectively reasonable and the disclosure is made in good faith. If this is so, then the employee has statutory protection, even if there is no actual infraction.
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