Whistleblowing and Reasonable Belief

It is automatically unfair dismissal to dismiss an employee for making a ‘protected disclosure’, in good faith, to someone to whom they are entitled to make it, or to penalise them for doing so. Section 43B of the Employment Rights Act 1996 (ERA) defines a ‘qualifying’ protected disclosure as any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show that a criminal offence has been, is being or is likely to be committed and/or that a person has failed, is failing or is likely to fail to comply with any legal obligation he is under.

A case before the Court of Appeal (Babula v Waltham Forest College) raised a point of law as to the precise meaning of the words ‘in the reasonable belief’ in such situations. Does it mean that the worker must be able to point to an actual criminal offence or breach of legal obligation, on the basis of the facts, or is it enough that the worker reasonably believes that this exists?

Mr Babula worked as a lecturer for Waltham Forest College between January and August 2004. He took over responsibility for a business course after the person who had been teaching it left the College. Mr Babula found that the students were behind with their work. When he investigated, he became concerned that his predecessor had been using the time to teach religious studies and that remarks he had made supporting the 9/11 attacks constituted the criminal offence of incitement to racial hatred. He reported his fears to the College but no action was taken. He therefore felt that he had no option but to ‘blow the whistle’. As Mr Babula is an American citizen, he contacted the CIA and the FBI and was advised to make a disclosure to the police. He told the College what he had done and, in his view, its subsequent treatment of him left him with no alternative but to resign. This was the basis of his claim to the Employment Tribunal (ET) for unfair constructive dismissal.

The ET struck out Mr Babula’s claim. It took the view that it was bound by the Employment Appeal Tribunal’s (EAT) judgment in Kraus v Penna, which included a statement of principle that if an employer was not under any legal obligation, a worker could not claim protection under the legislation because he reasonably believed that it was. The ET was of the view that what the former lecturer was alleged to have said was an incitement to religious, not racial, hatred and this was not an offence at that time. Furthermore, although the head of the College was bound to comply with its existing equality policies, these did not include anything on religious discrimination.

The EAT rejected Mr Babula’s appeal, finding that his claim foundered on the distinction between racial and religious discrimination.

On examining the point of law at issue, the Court of Appeal found that although Kraus v Penna was correctly decided on the facts of that case, the construction of ERA section 43B contained in the judgment is not a correct statement of the law and should not be followed. The Court judged that provided the ET finds that the worker’s belief is objectively reasonable, neither the fact that the belief turns out to be incorrect nor the fact that the information does not in law amount to a criminal offence is sufficient by itself to make the belief unreasonable and so deprive the whistleblower of the protection afforded by the statute. The fact that the whistleblower may be wrong is not relevant, provided his belief is reasonable and the disclosure is made in good faith. The matter was therefore remitted to a fresh ET.

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