whistleblowers - reasonable belief is sufficient

[Amethyst]

Printer Friendly Comment on this Article Whistleblower's 'reasonable belief' is sufficient: Babula v Waltham Forest College [2007] EWCA Civ 174

20 March 2007 00:00This article first appeared in Personnel Today magazine. Subscribe online and save 20%.

Babula v Waltham Forest College [2007] EWCA Civ 174

Background

Mr Babula was a college lecturer. He became concerned that his predecessor had made remarks to students that had incited racial hatred. When he reported his concerns to the college he was ignored, so he decided that he had no option but to report the matter to the police - he 'blew the whistle'.

Babula claimed that the college's treatment of him following this disclosure left him with no alternative but to resign. He brought a claim for unfair (constructive) dismissal contending that the disclosure he made was a protected disclosure under section 43 of the Employment Rights Act 1996.

The tribunal struck out Babula's claim, stating that it was bound by the Employment Appeal Tribunal's (EAT) decision in Kraus v Penna, which the tribunal stated was authority for the proposition that a disclosure is not a qualifying disclosure unless a criminal offence, or legal obligation, capable of breach actually existed. The tribunal said the lecturer's comments were incitement to religious hatred, not racial hatred. There was no such offence at the time, so Babula's disclosure could not be protected.

As the college's equal opportunities policy did not refer to religious discrimination, Babula failed to show that the college was likely to fail to comply with a legal obligation. The tribunal said he could not, therefore, have reasonably believed that a criminal offence would be committed or a legal obligation breached so there was no whistleblowing claim.

The EAT dismissed Babula's appeal, but he appealed to the Court of Appeal.

Decision

The Court of Appeal allowed Babula's appeal, holding that Kraus v Penna was wrong in law and should no longer be followed.

In determining whether a disclosure is a qualifying disclosure, the whistleblower must show that they reasonably believed their disclosure tends to show that a criminal offence is likely to be committed, or legal obligation breached. What is relevant is the whistleblower's reasonable belief and not whether or not they are right.

The fact the whistleblower may be wrong is not relevant, provided their belief is reasonable and the disclosure to their employer is made in good faith.

Babula had identified a criminal offence (incitement to racial hatred) and a legal obligation (the college's equal opportunities policy). The question was whether or not he had a reasonable belief that the criminal offence had been or was going to be committed, or that the legal obligation had been or was likely to be breached. As his belief was reasonable, his disclosure was protected.

Key implications

This case shows that a whistleblower's belief may be reasonable even though it turns out to be wrong. Whether or not the whistleblower's belief is reasonable is a matter for the tribunal to determine.

The purpose of the whistleblowing legislation is to encourage employees to come forward and make disclosures of information that are in the public interest. To expect employees to have detailed legal knowledge sufficient to determine whether in fact an offence is likely to be committed, or legal obligation breached, works against the purpose of the legislation.

By Chris Weaver, associate, and Oliver Brettle, partner, White & Case

[Amethyst]

Re: whistleblowers - reasonable belief is sufficient

http://www.stephensons.co.uk/site/ne...le_belief.html


Whistleblowing and Reasonable Belief

3 Sep 2007

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.