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