| Those of you who attended our Autumn | | | | it from a student's computer, disabled some |
| Conference in 2006 may be interested to learn | | | | of the accounts and then told the Head |
| of some recent developments in the area of | | | | Teacher what he had done. For his trouble, he |
| whistleblowing - that is, claims of suffering | | | | received a written warning on the grounds of |
| a detriment or dismissal on account of making | | | | misconduct for breaking into the system |
| a protected disclosure under the Public | | | | without authority. In response to this he |
| Interest Disclosure Act 1998 (PIDA). | | | | resigned, claiming that he had been subjected |
| | | | to a detriment and constructively dismissed |
| The scope of PIDA | | | | for making a protected disclosure. |
| | | | |
| The case of Croke v Hydro Aluminium Worcester | | | | The Employment Tribunal accepted that there |
| Ltd concerned an individual who supplied his | | | | had been a qualifying disclosure under PIDA |
| services to an employment agency through his | | | | because the teacher reasonably believed that |
| own service company. The employment agency, | | | | his employer was likely to be in breach of |
| in turn, supplied the services of that | | | | its legal obligation under the Data |
| company to an end user client. Despite this | | | | Protection Act 1998. The Tribunal further |
| very commercial arrangement, the Employment | | | | decided that the teacher's conduct in |
| Appeal Tribunal (EAT) held that the | | | | breaking into the system was so interrelated |
| individual was a "worker" for the purposes of | | | | to his original disclosure that it should be |
| section 43K of the Employment Rights Act 1996 | | | | considered to be "part and parcel of it". |
| (ERA) (which incorporates provisions of | | | | According, as the teacher had clearly |
| PIDA). The individual was therefore entitled | | | | suffered a detriment on account of such |
| to bring a claim that he had suffered a | | | | conduct, his claim was upheld. |
| detriment (in this case the termination of | | | | |
| this contract) on the grounds that he had | | | | However, both the EAT and now the Court of |
| made a protected disclosure. | | | | Appeal have rejected this analysis. The EAT |
| | | | drew an important distinction between the |
| Reasonable Belief | | | | disclosure of information itself (which is |
| | | | protected) and the conduct designed to |
| To gain protection under the PIDA, a worker | | | | demonstrate that a particular belief was |
| need only hold a reasonable belief that the | | | | reasonable (which is not). Put simply, E was |
| information disclosed tends to show one of | | | | disciplined for his actions in hacking into |
| the "relevant failures" under s.43B ERA (e.g. | | | | the system, not for informing the school that |
| that a criminal offense was being committed, | | | | its system was insecure. A worker is not |
| that the employer was in breach of a legal | | | | permitted to commit what would otherwise be |
| obligation, or that there was a risk to | | | | an act of misconduct in order to justify a |
| health and safety or the environment). If the | | | | disclosure. |
| worker is ultimately shown to be wrong, this | | | | |
| will not be fatal to his whistleblowing | | | | Comment |
| claim, providing that the mistake was | | | | |
| reasonable. | | | | Whilst the EAT's reasoning is persuasive, it |
| | | | does reveal a weakness in the whistleblowing |
| In 2004, the case of Kraus v Penna plc & anor | | | | legislation. If a worker's actions in |
| imposed a controversial limitation on the | | | | investigating suspected malpractice are not |
| concept of reasonable belief. The EAT in that | | | | protected, it may be difficult to establish a |
| case held that, although a whistleblower's | | | | sufficient "reasonable belief" to ensure that |
| claim will not be defeated if he is | | | | any subsequent disclosure is protected. This |
| reasonably mistaken about the factual basis | | | | will deter potential whistleblowers from |
| of the alleged malpractice, the claim will | | | | coming forward and undermine the purpose of |
| fail if, as a matter of law, the employer was | | | | the legislation. Commentators have suggested |
| not actually under any legal obligation in | | | | that one solution may be to soften the |
| the first place, or the alleged act(s) could | | | | statutory test so as to only require a |
| not amount to a criminal offence. | | | | "genuine belief" (subjective test) or a |
| | | | "reasonable suspicion". |
| This is a subtle but important distinction | | | | |
| which has recently been examined by the Court | | | | Whilst employers will welcome this decision, |
| of Appeal in the case of Babula v Waltham | | | | it is not a "get out of jail free card". |
| Forest College. Mr Babula was a lecturer on a | | | | Tribunals will be wary of employers alleging |
| business course who discovered that his | | | | that an employee was dismissed because of an |
| predecessor, Mr Jalil, had not taught the | | | | act related to a disclosure rather than the |
| course curriculum but had divided the class | | | | disclosure itself and employers running this |
| into an Islamic group (to whom he taught | | | | argument can expect a thorough examination of |
| religious studies) and a non-Islamic group | | | | their underlying motives. |
| (which he ignored). He had also told the | | | | |
| Islamic group that he wished that a terrorist | | | | AND IN OTHER NEWS |
| incident, similar to September 11, would | | | | |
| occur in London. Mr Babula reported these | | | | Religion (or a lack thereof) has featured |
| allegations to the Head of School but | | | | heavily in a number of recent employment law |
| subsequently resigned, claiming that he had | | | | cases. |
| been subjected to a number of detrimental | | | | |
| acts as a result of raising his concerns. | | | | In the highly publicised case of Azmi v |
| | | | Kirklees Metropolitan Borough Council, Mrs |
| In pursuing a claim for automatic unfair | | | | Azmi has lost her appeal regarding her right |
| dismissal under PIDA, Mr Babula sought to | | | | to wear a veil whilst performing her duties |
| establish that he had made a protected | | | | as a bilingual support teacher. The EAT found |
| disclosure on the following grounds:- | | | | that an instruction to remove the veil was |
| | | | neither directly or indirectly discriminatory |
| That he reasonably believed that a criminal | | | | on the grounds of religion or belief. |
| offence of incitement to racial hatred had | | | | Although the instruction met the criteria for |
| been committed; and | | | | indirect discrimination, the EAT held that |
| | | | the employer was entitled to rely upon the |
| That the College had failed to comply with a | | | | defence of 'objective justification' - the |
| legal obligation by failing to implement it's | | | | instruction being a proportionate means of |
| equal opportunities policy against those who | | | | achieving a legitimate aim (namely, the |
| discriminate on the grounds of religion. | | | | provision of the best quality education). |
| | | | |
| Applying the strict test in Kraus, the | | | | In Glasgow City Council v McNab an atheist |
| Tribunal and the EAT concluded that Mr Babula | | | | teacher working in a local |
| failed on both of these grounds. Firstly, the | | | | authority-maintained Roman Catholic school |
| alleged actions of Mr Jalil were undertaken | | | | sought a promotion to the position of |
| on the grounds of religion, not race, and at | | | | 'principle teacher of pastoral care'. |
| the time, there was no such offence to | | | | However, he was refused an interview on the |
| incitement to religious hatred. Secondly, the | | | | grounds that being of Roman Catholic faith |
| Respondent's equal opportunity made no | | | | was a prerequisite for the post in question. |
| reference to religious discrimination and so | | | | The Council accepted that it had |
| no legal obligation was established. | | | | discriminated against Mr McNab but sought to |
| According to Kraus, Mr Babula's reasonable | | | | rely upon the "genuine occupational |
| beliefs were irrelevant if no criminal | | | | requirement" defence contained in the |
| offence or legal obligation actually existed. | | | | Religion or Belief Regulations. In rejecting |
| | | | the Council's argument, the EAT held that the |
| However, the Court of Appeal thought | | | | responsibilities of a pastoral care teacher |
| otherwise. Overturning the decision in Kraus, | | | | involved giving advice upon a large number of |
| the Court ruled that such a restrictive | | | | issues, not simply the teachings of the Roman |
| interpretation would undermine the whole | | | | Catholic Church (which could be delegated to |
| purpose of the whistleblowing legislation, | | | | another teacher). It followed that it was not |
| which is to encourage workers to come forward | | | | a genuine requirement for the post holder to |
| on the basis of their reasonable beliefs - | | | | be of Roman Catholic faith and the Council |
| not their legal expertise. Mr Babula | | | | had unlawful discriminated against Mr McNab. |
| therefore won his appeal. | | | | |
| | | | Finally, in New Testament Church of God v |
| Breaking the Chain of Causation | | | | Stewart, the EAT has confirmed that a |
| | | | minister of religion can bring a claim for |
| In order to succeed in a claim under the | | | | unfair dismissal as they are employed under a |
| PIDA, a worker must prove causation i.e. that | | | | contract of employment. In rejecting the |
| the relevant detriment or dismissal was a | | | | traditional view that a cleric is merely "a |
| direct result of having made a protected | | | | servant of God", the EAT held that: "if the |
| disclosure. The case of Bolton School v Evans | | | | relationship between church and minister has |
| involved an information technology teacher | | | | many of the characteristics of a contract of |
| who was concerned about the security of the | | | | employment in terms of rights and |
| School's new IT system. His initial concerns | | | | obligations, these cannot be ignored simply |
| were not addressed and so to demonstrate the | | | | because the duties are of a religious or |
| system's potential weaknesses, he hacked into | | | | pastoral nature. |