Whistleblowing: refinements to the qualifying disclosure test (Twist DX and ors v (1) Armes (2) Kent-Armes)

When deciding whether a disclosure is a qualifying disclosure, to determine whether, potentially, it may acquire whistleblowing protection, (1) it will often be necessary to look at evidence of the context in which it was made rather than simply at the words it contained, and (2) it is not necessary for the disclosure expressly to identify the specific type of wrongdoing, within the categories set out in the statute, that is pertinent to the disclosure, according to the EAT.

(1) Twist DX (2) Abbott (UK) Holdings (3) Abbott Laboratories (4) Gogay (5) Macken (6) Muggeridge v (1) Armes (2) Kent-Armes (UKEAT/0030/20/JOJ)

What are the practical implications of this judgment?

This EAT judgment includes a discussion on two aspects of the test for whether a disclosure will amount to a qualifying disclosure for the purposes of (potentially) acquiring whistleblowing protection.

The first aspect concerns the question of what types of information/evidence may be considered when deciding whether the various elements of the qualifying disclosure test have been met.

The case concerned various written statements relied on by the claimant as protected disclosures. It was argued on behalf of the respondent that, in those circumstances, the tribunal was obliged, when determining whether the statements were qualifying disclosures, to confine its consideration to the wording of those statements alone and in isolation, in an exercise akin to statutory construction.

The EAT disagreed: it confirmed and considered what had been said previously by the Court of Appeal in Kilraine v London Borough of Wandsworth, namely that it was permissible and often necessary to assess a given disclosure in the light of the particular context in which it is made. Reference was made to an illustrative example cited in a previous case of a worker bringing his manager down to a particular ward in a hospital, gesturing to sharps left lying around and saying ‘You are not complying with health and safety requirements’, the point being that the mere words spoken tell only part of the story as regards whether the utterance constituted a qualifying disclosure; the statement derived force from the context in which it was made and hence its words should be looked at in combination with that context.

In the context of the case, which had been a strike-out application in which the respondent asserted that the statements relied upon could not possibly amount to qualifying disclosures, the EAT confirmed as correct the employment tribunal’s decision to examine witness statements as well as look at what words were contained in the statements themselves, as that was necessary to provide that context in order properly to apply the qualifying disclosure test.

The second point concerned the question of the level of specificity there must be in an utterance in order for it to amount to a qualifying disclosure. To amount to a qualifying disclosure the worker must reasonably believe that the disclosure tends to show one or more of a statutory list of specific types of wrongdoing. The question considered here was how directly a disclosure must refer to one or more of the specified matters in that statutory list in order to amount to a qualifying disclosure.

One of these specific types of wrongdoing is ‘that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which they are subject’. In the 2002 EAT judgment in Fincham v HM Prison Service, that was the type of wrongdoing that was under consideration. Subsequent to that judgment, some had thought that, in such ‘legal obligation’ whistleblowing cases, it was incumbent on the claimant to identify, in the words of the disclosure, the legal obligation said to have been breached, unless that fact was otherwise obvious, in order for the disclosure to amount to a qualifying disclosure.

Linden J has, in this case, looked back at Fincham and held that it gave rise to no such principle; i.e. it did not erect such an extra specific hurdle to clear in cases involving alleged breach of a legal obligation. In fact, Counsel for the appellant in this case had, in effect, sought to argue that the principle he said could be derived from Fincham should apply to all types of whistleblowing disclosure (i.e. not just to those suggesting breach of legal obligation), requiring the person making the disclosure to be quite specific in the disclosure itself as to what type of wrongdoing was alleged. Again, Linden J did not agree:

• in any given case, to determine whether or not a disclosure amounts to a qualifying disclosure, the statutory wording requires the tribunal to consider whether the worker reasonably believed that the disclosure tended to show one or more of the specific types of wrongdoing listed in the statute
• the degree to which the worker, in the disclosure, mentions and clarifies what specific type of wrongdoing is pertinent is not irrelevant to that test. Rather, what they said, and whether the matter is obvious, are relevant evidential considerations in deciding what they believed and the reasonableness of what they believed
• these questions, however, do not present an additional, formal legal hurdle which must always be cleared for a given disclosure to amount to a qualifying disclosure

It will be noted that the test to be applied looks at what the person making the disclosure believed that the disclosure tended to show, and whether that belief was reasonable. It is thus looking at this question from the viewpoint of the claimant in a whistleblowing case; it will not be 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.

 Case details

• Court: Employment Appeal Tribunal
• Judge: Linden J
• Date judgment published: 23 February 2021

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