England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Hon Judge J McMullen QC (Presiding)
EAT/0508/02/ZT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st July 2004

Lord Justice Auld :

1. The appellant, Mrs Frances Muriel Street, appeals from a decision of the Employment Appeal Tribunal affirming the determination of the Sheffield Employment Tribunal turning on the meaning of the requirement of "good faith" in making disclosures in the public interest that are "qualifying" disclosures under section 43B of the Employment Rights Act 1996 ("the 1996 Act"), and, therefore, "protected" disclosures under sections 43A and 43C to 43H of the Act.
2. Dismissal of a worker on account, or principally on account, of him having made such a protected disclosure is, by section 103A of the 1996 Act, deemed to have been an unfair dismissal for the purposes of that Act. Those provisions were inserted in a new Part, Part IVA, of the Act by section 1 of the Public Interest Disclosure Act 1998, the purpose of which is clearly stated in its long title:

"An Act to protect individuals who make certain disclosures of information in the public interest; to allow such individuals to bring action in respect of victimisation; and for connected purposes."

They relate to "any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show" among other things the commission or likely commission of a criminal offence or a failure or likely failure by a person to comply with any legal obligation to which he is subject (Section 43A and 43B(1) (a) and (b)).

3. Section 103A of the 1996 Act provides in effect for an "automatic" entitlement to be regarded as unfairly dismissed for the purpose of the Act if the reason, or if there is more than one, the principal reason, for the dismissal is that he made what the Act defines, in section 43A, as a "protected disclosure", that is, one of various sorts so specified in section 43B, the degree of protection qualifying for the purpose varying according to different circumstances specified in sections 43C to 43H. It should be noted that if a disclosure does not qualify for protection, that is, an automatic entitlement to be regarded as unfairly dismissed, the worker is still entitled to pursue his claim for unfair dismissal before an Employment Tribunal under Chapter 2 of Part X of the 1996 Act in the ordinary way.
4. In this case Mrs Street, who had worked as an administrator for the Derbyshire Unemployed Workers Centre ("the Centre") from 1989, was dismissed by the Centre in January 2001 after making a series of allegations against the manager of the Centre. She made a claim to an Employment Tribunal maintaining that she was entitled to be regarded as unlawfully dismissed under section 103A. The Tribunal dismissed her claim, holding that, in making the disclosure, she had lacked the good faith required under section 43C(1) or 43G(1)(a). The Employment Appeal Tribunal upheld that ruling and remitted the case back to the same Employment Tribunal for it to consider a claim of "ordinary" unfair dismissal.
5. The scheme of the "whistle-blowing" provisions in the 1996 Act is to encourage and protect employees to, and who, report concerns about malpractice in the work-place and elsewhere. The Act provides a three tiered disclosure regime under which, if the "whistleblower" is to secure the automatic protection of section 103A, his responsibility for justifying his disclosure is set progressively higher according to the distance of the person to whom he makes it from the main subject or object of his complaint. In all of them, save for section 43D – disclosure to legal adviser - the minimum requirement for protection is that the disclosure is made "in good faith".
6. Thus, in section 43C, all that a worker who makes a disclosure to his employer or to another responsible person, or under section 43E – disclosure to a Minister of the Crown - has to do to qualify to for automatic protection is to show that his disclosure was made "in good faith". One of the disclosures under consideration in this case was made to a member of the Centre's Management Committee, and was thus a candidate for protection under section 43C.
7. The second tier of disclosure, in which greater justification is required for protection, is that provided by section 43F - disclosure to a prescribed person – where, in addition to showing that the disclosure was made "in good faith", the worker must show that he reasonably believed that the malpractice of which he complained falls within the description of the matters in respect of which that person is prescribed and that his complaint is "substantially true". None of Mrs Street's disclosures under consideration in this case falls within this category.
8. The third tier of protection, with which this appeal is mainly concerned, is that provided for in section 43G – "Disclosure in other cases" - where the "whistleblower" has to do much more to justify his automatic protection.^[1] In addition to showing that he made the disclosure "in good faith" under section 43G(1)(a), he must show that it was made:

i) in the reasonable belief that the information disclosed, and any allegation contained in it, were substantially true" (section 43G(1)(b));

ii) it was not made for purposes of personal gain" (section 43G(1)(c);

iii) satisfaction of any one of a number of specified conditions going to the worker's reasonable belief that he would suffer detriment or that evidence of the subject matter of his complaint would be concealed (section 43G(1)(d)); and

iv) "in all the circumstances of the case, it was reasonable for him to make the disclosure" (section 43G(1)(e)), in the determination of which, regard must be had to a number of factors in a non-exhaustive list in section 43G(3), including the identity of the person to whom the disclosure was made, the seriousness of the failure complained of and whether it was continuing or was likely to continue.

9. It is plain from that summary of the relevant provisions that; 1) the conditions in section 43G(1) are cumulative, that is, that a disclosure is only a "qualifying disclosure" if all of them are met; 2) the conditions in section 43G(2) are disjunctive, that is, it is sufficient if any one of them is met; 3) there is some overlap between them all; and 4) in making separate and cumulative provision in section 43G(1) for "good faith" in (a), reasonable belief in the truth of the disclosure in (b) and reasonableness of the disclosure in all the circumstance in (e), the draftsman has allowed for circumstances in which the disclosure, though made with reasonable belief in its truth, would not qualify for protection because it was not made in good faith and/or reasonably.
10. Looking at the provisions overall, Mummery LJ has given the following useful narrative account of their requirements in paragraph 4 of his judgment in ALM Medical Services v Bladon [2002] EWCA Civ 1085, with which Sir Andrew Morritt V-C and Rix LJ agreed:

"The provisions can only be invoked if the relevant disclosure satisfies certain requirements. In outline they are as follows: i) A disclosure of information only qualifies for protection if, in the reasonable belief of the worker making the disclosure, it tends to show one or more things specified in section 43B(a) to (f); for example, that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject; or that the health or safety of any individual has been, is being or is likely to be endangered. ii) The disclosure must be made in accordance with the provisions of ss 43C to 43H: for example, the worker must make the disclosure in good faith to his employer (s 43C). iii) Disclosure by a worker 'in other cases' may be also protected under s 43G, if certain cumulative requirements are met: it must be made in good faith, he must reasonably believe that the information disclosed, and any allegation contained in it, are substantially true, he must not make the disclosure for the purposes of personal gain. iv) In such 'other cases' one or more of the conditions set out in section 43G(2) must also be met. They require that at the time he makes a disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or that he reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or that the worker has previously made a disclosure of substantially the same information to the employer. v) There is also a requirement that, in all the circumstances of the case, it is reasonable for the worker to make the disclosure. Section 43G(3) sets out the factors to which regard must be had, in particular, in determining whether it is reasonable for the worker to make the disclosure: e.g. the identity of the person to whom disclosure is made, the seriousness of the relevant failure, whether the relevant failure is continuing or is likely to occur in the future and any action which the employer, to whom previous disclosure was made, has taken or might reasonably be expected to have taken as a result of the previous disclosure."

The Facts

11. Mrs Street began employment with the Centre in May 1989 and was dismissed on 30 January 2001. She was initially employed as a part-time administrative assistant, and from 1993 onwards as a full-time administration worker. The Centre is a voluntary non-profit-making organisation providing advice and assistance to unemployed, unpaid or low-paid people in North East Derbyshire.
12. The management of the Centre is conducted by a Management Committee made up of persons, not employed by it, but who are elected or co-opted onto the Committee by the various bodies that fund it. Those include the Chesterfield Borough Council ("the Borough Council") and the North East Derbyshire District Council ("the District Council"). At all relevant times, the co-ordinator (effectively the manager) of the Centre was Mr Colin Hampton. His assistant was a Mr Pemberton, and there were five other paid staff, including Mrs Street.
13. On 22nd May 2000 Mrs Street wrote to the Treasurer of the Borough Council, a Mr Richard Earlam, making various allegations against Mr Hampton, a disclosure within section 43G. She headed her letter "Private and Confidential under Whistle Blowers Legislation", and alleged that:

i) Mr Hampton had committed a fraud in setting up an allegedly secret account, namely the Chesterfield and District Trade Union Council ("TUC") Contingency Account into which some £16,000 had allegedly been transferred by the Trade Union Safety Team ("TRUST") of which Mr Hampton was Treasurer, so that, it was alleged, it would appear for the purposes of any means tested funding that TRUST had fewer assets than was the case. This allegation had been made earlier in March 2000 by a Mr Richard Easson, former Treasurer of the TUC, at the annual general meeting of the TUC attended by Mrs Street. The TUC was a separate organisation from the Centre, but the Centre had been established by the TUC and both organisations shared the aims of the wider Labour movement.

ii) Mr Hampton had made trips abroad during his working time for the Centre, but for the benefit of other organisations. Again, it appears that this allegation had been made before, this time in an anonymous letter of November 1999, written by a Mr French to Mr Earlam, making various allegations against Mr Hampton. The Centre, in response to that letter, had called upon Mr Hampton to respond to the allegations, and he had done so by a letter of 10th January 2000. In the light of his explanation, the Centre had taken no further action.

iii) Mr Hampton had frequently instructed Mrs Street to do work for other organisations in her normal working hours for the Centre.

14. Mr Earlam responded by letter of 25 May 2000. He stated that it would be difficult for the Borough Council to investigate the allegations because it did not have powers of entry or inspection of documents. He suggested that her letter could be shown to the Chairman of the Centre's Management Committee, Councillor Kendellen, or that he, Mr Earlam, could raise the issues with Councillor Kendellen on a non-attributable basis.
15. Mrs Street, in her reply of 19 June 2000, rejected his suggestions, stating that she had no confidence in the Centre's Management Committee. She also referred to Mr Hampton's recent barring of District Councillor Patricia Williams from meetings of the Centre's Management Committee (but of which she remained a member), for having allegedly breached the Centre's equal opportunities policy and also complained that he had used an item of correspondence against another employee, Mr Derek Skinner, in breach of the Data Protection Act 1998. Mr Earlam's response was to suggest that they should meet, but she declined to do so.
16. In the latter part of June 2001, Mrs Street showed Councillor Williams copies of the two letters she had written to Mr Earlam, a disclosure falling within section 43C of the 1996 Act as Councillor Williams had been a member of the Centre's Management Committee. She also showed Councillor Williams a copy of what purported to be a report of the Centre's staff meeting of 9 June 2000. That report recorded an incident during the meeting when a volunteer, Sarah Roy, had behaved in a way demonstrating disrespect towards persons with learning disabilities. In her note Mrs Street commented that she found it strange that Mr Hampton had not remonstrated with Ms Roy over the incident, and contrasted his treatment of Councillor Williams in barring her from the Centre for alleged comparable conduct, namely her harassment of a Mr Skinner's estranged partner (a matter to which the Employment Tribunal was to make express reference in its extended reasons for its determination).
17. At a meeting of the Centre's Management Committee on 11th October 2000, the Vice-Chairman, Mr Johnson, reported the allegations of impropriety against Mr Hampton. The Committee resolved on an investigation to be carried out by an independent person, namely, Mr John Burrows, a Councillor of the Borough Council and Chairman of its Standards Committee. The Centre then invited Mr Burrows to conduct the investigation, but did not do so in writing and gave him no specific terms of reference.
18. Mr Burrows investigated three separate issues, the first two arising out of Mrs Street's section 43G disclosures to Mr Earlam, namely the alleged use by Mr Hampton of work-time for the Centre when abroad and the issue of the Centre's staff being used for non-Centre work, and the third, Mrs Street's section 43C disclosure to Councillor Williams, in her suggestion of his double standards in his implementation of the Centre's Equal Opportunities Policy. The Centre did not instruct Mr Burrows in relation to the allegation of fraud - apparently that was considered to be a matter for the TUC.
19. Mrs Street declined Mr Burrows' request to interview her for the purpose of his investigation. His report exonerated Mr Hampton and was critical of her for failing to co-operate with the investigation her allegations had prompted. He described her as being at best misguided and at worst malicious. He stated that the allegations were unfounded and possibly required serious disciplinary proceedings to be taken against her.
20. Mr Burrow's report was presented to the Centre's Management Committee at a meeting on 18 December 2000, at which the Committee seemingly concluded that Mrs Street's allegations against Mr Hampton were unfounded. By letter of the same date, the Centre's Committee's Assistant Co-ordinator, a Mr Pemberton, wrote to her suspending her from work pending an investigation of the "serious matters" to which Mr Burrows had referred. In a subsequent letter, Mr Pemberton invited her to a "fact-finding" interview on 11 January 2001. She attended the interview with her union representative and gave an explanation for her disclosures to Mr Earlam and Councillor Williams and for her refusal to co-operate with Mr Burrow's investigation. She said that she had gone to Mr Earlam, as Treasurer of the Borough Council, and to Councillor Williams, a member of the Centre's Management Committee, because she had feared that otherwise there would be a cover-up and that she would be victimised. And she said that she had not co-operated with Mr Burrow's investigation because she had not regarded him as truly independent, and because she thought of him as a friend of Mr Hampton.
21. On 25th January 2001 Miss Street attended, again with a union representative, a disciplinary interview at the Centre. Following that interview, Mr Pemberton wrote to her informing her that the Centre had summarily dismissed her for gross misconduct and breach of trust on the basis of her "unfounded and libellous" allegation against Mr Hampton and her refusal to co-operate with Mr Burrows' investigation.
22. Mrs Street's internal appeal against that dismissal was ultimately unsuccessful. Prior to its determination, she sought, in early February 2001, interim relief from the Nottingham Employment Tribunal maintaining that she had been unfairly dismissed on account of her disclosures and that she was entitled to automatic protection from unfair dismissal under sections 43C, 43G and 103A of the 1996 Act.

The Employment Tribunal's Determination

23. The Employment Tribunal found that Mrs Street's various disclosures to Mr Earlam and Councillor Williams were qualifying disclosures under section 43B(1)(b) of the 1996 Act, as they were disclosures that she had reasonably believed tended to show that Mr Hampton had failed to comply with legal obligations to which he was subject, namely his contract of employment with the Centre. The Tribunal then considered whether those qualifying disclosures became protected disclosures under any of the sections 43C to H. It held that the disclosure to Councillor Williams fell to be considered under section 43C (disclosure in good faith to employer or other responsible person) and those to Mr Earlam, under section 43G (disclosure in good faith in other cases not covered by section 43C-F, but subject to the additional requirements set out in section 43G(1)(b) to (e) that I have mentioned).
24. The Tribunal concluded that none of Mrs Street's three disclosures was protected, because none had been made in good faith. In relation to her two disclosures to Mr Earlam, it found that, notwithstanding its finding that she had not made them in good faith (a), she had satisfied the other requirements of the section, namely she had reasonably believed in the substantial truth of her allegations (b), she had not made the disclosures for personal gain (c), she had satisfied one of the conditions in section 43G(2), namely that she had reasonably believed she would be subject to a detriment if she had reported the matters to her employer (d), and that in all the circumstances it had been reasonable of her to make the disclosures (e). Thus, as in the case of her disclosure to Mrs Williams, her claim that her disclosures to Mr Earlam were protected foundered on the Tribunal's finding that she had not made them in good faith.
25. On the issue of good faith, the critical issue for the Tribunal was, therefore, what exactly is meant by that requirement, common to all, save one, of the forms of protected disclosure provided for in section 43C-H, and what, if anything, it adds to the requirement of reasonable belief in its substantial truth in section 43F(1)(b)(ii) and 43G(1)(a) and, in the latter case, to the other requirements specified in section 43G(1), in particular, not for personal gain (c) and reasonableness (e). Mrs Street's case was that good faith simply meant "honestly" and added nothing to that concept, where, in addition, a reasonable belief in the substantial truth of the allegation is required. The Centre's case was that the requirement of good faith in those provisions must require something more or different from a reasonable belief in the truth of the allegations, as otherwise there would be no need for its inclusion in them.
26. The Tribunal clearly took the view that, although there was some overlap between the requirements of good faith and of reasonable belief in the honesty of the content of a disclosure, that of good faith did add something, namely a consideration of motive. Having taken into account the circumstances surrounding Mrs Street's allegations, including their timing and her failure to co-operate with the later investigation, it concluded that none of them had been made in good faith, but had instead been motivated by her personal antagonism towards Mr Hampton. It, therefore, dismissed her claim to automatic protection under section 103A from dismissal. This is how it approached that matter of law in paragraph 13(a) of its extended reasons:

"We note that … good faith is the first matter which is required. It seems to us that there must be a certain degree of overlap between the concept of good faith in Section 43G(1)(a) and the reasonable belief in the substantial truthfulness as set out in Section 43G(1)(b). We find that applicant's allegations were as far as she was aware, true and in that sense we find that she has complied with sub-section (1)(b). The question of how that information is used is of course a separate matter going back to the issue of good faith. There has been no suggestion that the applicant made the disclosure for personal gain. We then consider the matters set out in Section 43G(2) of which really the only relevant part is sub-section '(a) that, at the time he makes the disclosure the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer …'. We find that such was the applicant's view of Mr Hampton that she did believe that a disclosure made to her employer would at best be ineffective and at worst would lead to what she believed had happened to others namely that if one was not for Mr Hampton one was perceived as being against him. Turning to Section 43G(3) we find that a disclosure to someone in Mr Earlam's position namely Treasurer of the Local Authority which was a major founder of the respondent can properly be regarded as reasonable. Accordingly, in general terms we find that the applicant satisfies the vast majority of the conditions imposed by section 43G."

27. Before moving on to the Tribunal's consideration of good faith, I should say something about its favourable finding to Mrs Street on the issue of reasonableness ((e)) and, for this purpose, set out some of the potentially material factors in the non-exhaustive list of factors to which it was required, by section 43G(3), to have regard:

"… (a)" the identity of the person to whom the disclosure is made,

(b) the seriousness of the relevant failure,

(c) whether the relevant failure is continuing or is likely to occur in the future,

…"

28. It will be noted from the concluding words of the Tribunal's reasoning on the issue of reasonableness that the only matter to which it appears to have had regard was the identity of the recipient of her disclosure, namely the reasonableness of making it to someone in Mr Earlam's position as the Treasurer of the Local Authority as a major funder of the Centre, as if that was enough for the purpose. It may be that it overlooked the fact that it was required, in the words of section 43G(1)(e), to have regard to "all the circumstances of the case", not just those potential candidates listed in section 43G(3). It may be that it confused its enquiry as to reasonableness under those provisions with that under section 43G1)(d) and (2) where satisfaction of any one of the conditions in section 43G(2) would suffice. It may be that it took the view that, although it had found, in considering the issue of good faith, that Mrs Street had made her attack on Mr Hampton in bad faith fuelled by her personal antagonism to him, it had to put that out of its mind when considering whether her conduct was "in all the circumstances of the case … reasonable …" If so, as will appear, I consider that it erred in those respects.
29. The Tribunal then went on to consider on the evidence before it, whether Mrs Street had acted in good faith when she wrote her two letters to Mr Earlam. In paragraph 13(b) of its extended reasons, it found that she had not acted in good faith for the following reasons: 1) her second disclosure to Mr Earlam contained a passing reference to something that she knew to be untrue (i.e. not sufficient to affect the allegation's "substantial" truth for the purpose of section 43G(1)(b)); 2) many of the matters about which she had complained had occurred or had ceased to occur many years before; 3) she had learned of the secret fund allegation in March 2000, but had done nothing about it until her first disclosure letter on 22^nd May 2000; 4) her perception that some of her colleagues had been got rid of by Mr Hampton; 5) and her failure to cooperate with Mr Earlam or the Centre or Mr Burrows' investigation after having made her disclosures. Having set out those matters, the Tribunal expressed its conclusion in the following terms:

"Accordingly in those circumstances we conclude that none of the disclosures made can be regarded as made in good faith but were instead motivated by the applicant's personal antagonism towards Mr Hampton fuelled in particular by his perceived treatment of Mr Skinner's and Councillor Williams' cases. It therefore follows that the applicant has not made a Protected Disclosure and accordingly that cannot be the reason for her dismissal…."

The Employment Appeal Tribunal

30. The Employment Appeal Tribunal upheld the Employment Tribunal's holding and analysis at paragraphs 25 to 27 of its decision:

"25. As to good faith, we hold that there is a compelling finding of fact in the passage…[i.e. that in paragraph 29 above]. The Tribunal clearly had in mind the competing situations, that is, a faultless good faith disclosure and a disclosure made purely out of personal antagonism. It decided to reject the former description and accept the latter. There can be few areas on which the judgment of an Employment Tribunal is more fact-sensitive than in conducting such an exercise. As a matter of law, we see no question arising about that particular holding. Thus, it destroys the case (which would otherwise have been perfectly made by the Applicant) for a successful claim under section 103A.

26 We reject the contention that the simple finding that the Appellant believed the material, as far as she was aware, as being a complete answer. There is nothing inconsistent in an Applicant holding such a belief that the material is true and yet promoting it for reasons which are based upon personal antagonism. It seems to us that what Lord Denning had in mind, albeit in a different context [Secretary of State for Employment v ASLEF (No 2) [1972] 2 QB 455, at 492B-E (see paragraph 41 below)], was that the motive for which a person does a particular act can change its character from good to bad, and so here.

27. We do not think that the slight overlap that there may be between section 43G(1)(a) and (b) and section 43[G](3) destroys the essential focus, recognised as fundamental in this case, on whether the Applicant acted in good faith. Thus, it is important for the Tribunal to assess motive and, as often, this matter is one of fact for it to determine in its own appreciation.

….

29. Thus, the finding of lack of good faith in this case is one which was open to the Tribunal, having directed itself correctly as we hold. We agree that good faith involves the deployment of an honest intention and, just as in public law, actions of a person can be vitiated if a purpose is advanced not in accordance with the statute, here section 43G. [my emphasis]

"30. It is not, in our view, the purpose of the Public Interest Disclosure Act to allow grudges to be promoted and disclosures to be made in order to advance personal antagonism. It is, as the title of the statute implies, to be used in order to promote the public interest. The advancement of a grudge is inimical to that purpose. …"

31. It should be noted that the Tribunal, in paragraph 29, was content with the proposition that good faith involves the deployment of an honest intention.

The Submissions

32. Mr Joel Donovan, on behalf of Mrs Street, appeared at first in his submissions to accept that the requirement of good faith in section 43G(1)(a) is distinct from that of reasonable belief in the truth of disclosure in section 43G(1)(b). The distinction that he purported to draw was that, in addition to a reasonable belief in the truth of the disclosure, for it to be made in good faith a worker must make it "honestly" or with "with honest intention". But when pressed by the Court in the course of his submission as to the meaning of "honestly" or "with honest intention" in this context and its distinction, if any, from reasonable belief in the truth of the information disclosed, he said that they are virtually "indivisible" in meaning. He suggested that, if motivation is relevant, it would have to be both malicious and predominant to amount to bad faith. However, he submitted that the Employment Tribunal, in finding that Mrs Street had believed in the truth of her allegations, accepted "in effect" that she had acted "honestly" or "with honest intention" and, thereby, in good faith.
33. Mr Donovan suggested that the Tribunal, in going on to find that nevertheless, Mrs Street lacked good faith, simply illustrated that it had wrongly considered "in good faith" to mean something more than or different from "honestly" or "with honest intention". He focused on the implicit reference to motive by the Employment Tribunal, in its extended reasons, namely "that how … [the] information is used is … a separate matter going back to the issue of good faith". He maintained that, whilst such a consideration might relate to the requirement of reasonableness in section 43G(1)(e) on which the Tribunal had expressly found in Mrs Street's favour, it was a distinct issue from "with honest intention", and the Tribunal had wrongly ignored or muddled the distinction.
34. In his submissions, Mr Donovan drew on and adopted the written submissions to the Court of Public Concern at Work ("Public Concern"), which it made, with the permission of the Court, as an interested party. Public Concern is an independent charity and a legal advice centre established in 1993 specialising in advising both employees and employers on "whistleblowing". It is popularly known as "the whistleblowing charity". The main thrust of its submission on this appeal, for which the Court is grateful, was that it would seriously damage the purpose of the 1998 Act and the protection it provides in the public interest to "whistleblowers" if ulterior motivation, in particular the promotion of a grudge, were to deprive a disclosure of the quality of having been made in good faith. It urged the Court to look at the general application of the Act, in particular, the protection that it provides against pre-dismissal reprisals. Its primary submission was that a disclosure made in good faith under the Act means simply one that is made honestly, that is with a view to something being done about the failure disclosed, and that where it is made with mixed motives, the good faith requirement is satisfied where it is made honestly in that sense even if accompanied by an ulterior motivation, such as a personal grudge.
35. Alternatively, Public Concern suggested that, if an ulterior motive can vitiate the requirement of good faith, even where the disclosure is made honestly in the above sense, it should only have that effect where: 1) it is so "wicked or malicious" that it approaches "dishonesty"; and 2) it is the predominant motive for the disclosure. Whilst Mr Donovan had reservations that the threshold to bad faith should be put as low as "approaching" dishonesty, he was prepared to accept Public Concern's propositions as a "fall-back" submission should he fail in his primary one that motivation is irrelevant to the issue of good faith. At the very least, he argued, bad motivation should only negative good faith where it is the predominant motivation – and substantially so. Here, he said, the Employment Tribunal, at the very least, erred in failing to apportion in this way between good and bad motivations and in taking an "all-or-nothing" approach.
36. He relied in that respect on the express requirement in section 43G(1)(c) that the disclosure, if it is to be protected, must not be made for purposes of personal gain. He argued that a provision referring to such specific form of ulterior motive would be otiose if motive were relevant to the issue of good faith in section 43G(1)(a). Public Concern advanced the same argument in its written submission to the Court.
37. However, as Mr Donovan acknowledged, motivation is highly relevant to the requirement of reasonableness in section 43G(1)(e). Indeed, he conceded that if Mrs Street had fulfilled all the requirements, in which he substituted the words "honesty" or "with honest intention" for in good faith, but had made the disclosure out of pique or a grudge, as the Employment Tribunal found, she still risked being found to have acted unreasonably within section 43G(1)(e), having regard to the non-exhaustive list of factors in section 43G(3). Yet, as he acknowledged, albeit softly, the Tribunal had strangely absolved her of any unreasonableness, whilst at the same time found that she had not acted in good faith because of her personal antagonism towards Mr Hampton. In making that submission, he acknowledged that the Tribunal may have muddled the two requirements of good faith and reasonableness or may not have considered the issue of reasonableness under section 43G(1)(e) and (3) sufficiently widely. In short, he acknowledged that an ulterior motive could be a factor going to the reasonableness of disclosure and that, therefore, the best Mrs Street could hope for if she succeeded in this appeal on the good faith issue would be a remission of the issue of her disclosures to Mr Earlam under section 43G to the Employment Tribunal to reconsider the matter under the heading of reasonableness. (No such need for remission would arise in the case of the disclosure to Mrs Williams because that is governed by section 43C, which does not include a requirement of reasonableness.)
38. However, Mr Donovan maintained that there was a separate and important question as to the meaning of the requirement of good faith in these provisions that went beyond its application along with the clutch of other cumulative requirements in section 43G, namely whether it amounts to a requirement of "purity of motive". Such an interpretation, he submitted would significantly weaken – or indeed subvert – the purpose of the 1998 Act from which the provisions in the 1996 Act derive, of protecting those who make disclosures of information in the public interest from victimisation. He suggested that it cannot be a proper interpretation of the provisions to hold that a "whistleblower" loses that protection by reason of bad motivation, even in tiny part, towards his employer, however serious the failure disclosed, however understandable his antagonism and however reasonable it may have for the disclosure to have been made to someone other than the employer.
39. Mr Colin Bourne, on behalf of the Centre, submitted that the separate but cumulative imposition by section 43G(1) of, inter alia, the requirements of in good faith and reasonable belief in truth, means that in good faith must mean something additional to or other than a reasonable belief in the truth of the information disclosed. He argued that, having regard to the nature of the wrongdoing in respect of which disclosures are specified in section 43B as qualifying for protection, the requirement of good faith must mean that the disclosure should be made for the purpose of disclosing one or more of those wrongdoings, not for some other ulterior motive such as personal antagonism to the person the subject of the disclosure, as the Employment Tribunal had found in this case. He submitted, therefore, that the Employment Appeal Tribunal correctly did not interfere with the fact-finding function of the employment tribunal.
40. As to the written submissions of the Public Concern at Work, Mr Bourne suggested that they overstate the risk of undermining the protection Parliament intended to confer on those making disclosure in the public interest. He said that where, as here, an Employment Tribunal has found that the worker, in making the disclosure(s) was motivated "by … personal antagonism" towards the person, it does not advance the public interest to protect such conduct.

Conclusions

41. Shorn of context, the words "in good faith" have a core meaning of honesty. Introduce context, and it calls for further elaboration. Thus in the context of a claim or representation, the sole issue as to honesty may just turn on its truth. But even where the content of the statement is true or reasonably believed by its maker to be true, an issue of honesty may still creep in according to whether it made with sincerity of intention for which the Act provides protection or for an ulterior and, say, malicious, purpose. The term is to be found in many statutory and common-law contexts, and because they are necessarily conditioned by their context, it is dangerous to apply judicial attempts at definition in one context to that of another. This is so even in closely related legislation such as the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995, in which sections 4(2), 2(2) and 55(4) prevent as being discriminatory for the relevant purpose treatment prompted by an allegation that is "false and not made in good faith". In such a formulation which is concerned with the stark difference between truth or falsity, not, as here "reasonable belief in …[its substantial truth]", the notion of "good faith" is the only vehicle for considering the honesty or dishonesty of the allegation. For those reasons, I do not consider that it is helpful to turn in this context to some of the more distant examples of the use of the expression that have been cited to us, including: In Secretary of State for Employment v ASLEF [1972] 2 QB, 455, CA, where the issue was whether ASLEF had caused or would cause its members to breach their contracts of employment under the Industrial Relations Act 1971 by "working to rule", per Lord Denning MR, at 492 B-E, and Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd & Ors [1991] 2 All E 597, in the wholly different context of whether a company's refusal to consent to an increase in pension benefits was subject to an extra-contractual obligation to act in good faith, per Sir Nicholas Browne-Wilkinson V-C, 606d-e, 607d-f and 608d-e.
42. I should, however, say something about one other example, Central Estates (Belgravia) Ltd v Woolgar; Liverpool Corporation v Husan [1972] 1 QB 48, CA, which concerned the meaning of "in good faith" in the Leasehold Reform Act 1967 on the issue whether motivation is relevant to whether something is done or said in good faith, Lord Denning's words in that context, at 55, are a frequent point of reference:

"… under this statute a claim is made 'in good faith' when it is made honestly and with no ulterior motive. …"

However, the issue in that case was whether claims by two tenants under the 1967 Act to acquire the freehold and an extended lease of their respective properties were made in good faith so as to enable them to defeat their respective landlords' claims for re-entry and forfeiture for breach of covenant under their leases. The issue was, therefore, the good faith of a claim, which does not necessarily involve consideration of the truth of any statement of fact in making it, and where motive, or honesty of motive was all. It is thus understandable that Megaw LJ in that context equated "in good faith" with "honestly", saying, at 57:

"The words 'in good faith', in my opinion, mean 'honestly'. A claim is not made honestly if it is made with the intention of committing a criminal offence, or of facilitating the future commission of a criminal offence. It does not make it any the less a dishonest claim because the intended criminal offence is itself not what is called an offence involving dishonesty."

43. Whereas in Mrs Street's case, the issue is the good faith of a disclosure containing a statement of fact - an allegation. If it falls within section 43C it involves no separately identified issue as to its truth or reasonable belief in its truth or other indicia of honesty. If it falls within section 43G there is required, in addition to good faith, reasonable belief in its truth, no motive of personal gain, on the contrary a good reason for not disclosing to the employer, and reasonableness. In short, these provisions may require Employment Tribunals on occasion to distinguish between good faith and honesty in a way not called for in Central Estates, notwithstanding Lord Denning's seemingly conjunctive rather than disjunctive use of the words "honestly and with no ulterior motive".
44. I say "may" require such a distinction because where a statement is made without reasonable belief in its truth, that fact would be highly relevant as to whether it was made in good faith; see, for example, Darnton v University of Surrey [2003] IRLR 133, per Judge Serota, QC, at para 24, as indeed it would also be highly relevant as to its reasonableness. Mr Donovan accepted – indeed he prayed in aid - that degree of overlap between good faith, reasonable belief in substantial truthfulness and reasonableness in all the circumstances. But it does not necessarily follow that, where a statement is made in that belief, it necessarily follows that it is made in good faith or reasonably. Where, as in a statutory provision like section 43G(1), the parliamentary draftsman has included the notion of good faith among a set of cumulative conditions of the qualification in question, it is plain that he contemplated that the notion of good faith should be capable of adding, according to the circumstances, something to that of reasonable belief in truth, as Mummery LJ appears to have accepted in his analysis of these provisions in ALM Medical Services v Bladon, at para 4(iii) (see paragraph 11 above). It is noteworthy too that in section 43G, and also in section 43F, good faith is the first of the cumulative conditions stipulated.
45. Nevertheless, giving focus to Mr Donovan's concern that some bad motivation, some personal antagonism towards the employer, could, under the banner of bad faith, deprive him of protection even if he met all the other requirements of section 43G, it is important to start as Public Concern have stressed, with the context of the 1998 Act, the purpose and long title of which, for convenience, I repeat:

"An Act to protect individuals who make certain disclosures in the public interest; to allow such individuals to bring action in respect of victimisation; and for connected purposes."

Public Concern, in its written submission, suggested that the practical difficulty posed by any suggestion that a grudge or personal animosity or other motive is a bar to protection would be to cause a worker, considering making a disclosure in the public interest, to fear that he might lose protection and discourage him from doing so. And, as it suggested, such a state of mind is often integral to claims of this sort. That is especially so, as a claim can only be brought under the Act once the worker making it has been dismissed, and it is, therefore, easy for his employer to identify and allege.

46. However, the authorities that Public Concern cited in support of its contention are not in point. The first was In re A Company [1989] 3 WLR 265, which concerned a company's claim to restrain by way of interlocutory injunction a former employee from disclosing to a regulatory body its confidential material which he maintained showed impropriety by the company (see now, and cf, section 43J of the 1996 Act). The issue of motive arose not, as in Mrs Street's case, out of any conditional obligation imposed by law to make such disclosure in good faith, but out of an assertion inessential to the company's cause of action, based on the confidentiality of the information, that the former employee was motivated by malice. Scott J, as he then was, rejected the notion that either confidentiality of information or motivation of malice entitled the company to restrain disclosure of such information to a regulatory body, and, at 269, made the following comment on which Public Concern relied:

"… It may be the case that the information proposed to be given, the allegations proposed to be made by the defendant to F.I.M.B.R.A., and for that matter by the defendant to the Inland Revenue, are allegations made out of malice and based upon fiction or invention.

But if that is so, then I ask myself what harm will be done. F.I.M.B.R.A. may decide that the allegations are not worth investigating. In that case, no harm will have been done. Or F.I.M.B.R.A. may decide that an investigation is necessary. In that case, if the allegations turn out to be baseless, nothing will follow the investigation. And if harm is caused by the investigation itself, it is harm which is implicit in the regulatory role of F.I.M.B.R.A.. …"

However, it seems to me that that comment was more of a practical observation on the facts of the case than a proposition of law. And even if could be regarded as such a proposition or a pointer to the law, it would be both obiter and would say nothing about the effect of ulterior motive for doing something which, if it is to have a specific legal effect, the law requires to be done in good faith. Equally uninstructive on the issue of good faith as it is raised in Mrs Street's case was Public Concern's reliance on British Steel Corporation v Granada Television [1981] AC 1096, HL, for the general proposition that the common law's underlying approach to public interest disclosures is that motive is generally irrelevant.

47. On the broad point of construction by reference to the stated purpose of the 1998 Act, the reasoning of the Employment Appeal Tribunal, at paragraph 30 (see paragraph 30 above) is to the point. Its purpose is not to allow persons to advance personal grudges, but to protect those "who make certain disclosures in the public interest"; namely those specified in section 43B of the 1996 Act. And it has to be remembered that even if a worker might be deterred from making a relevant disclosure because of concern that his employer might raise against him a suggestion of bad faith in the sense of a mix of motives, including personal antagonism, or fails in his section 103A claim on that account, all is not lost. His automatic protection provided by that section is lost, but he can still maintain an "ordinary" claim for unfair dismissal against his employer in which a mix of motives may not be fatal to his claim.
48. Turning more closely to the construction and effect of the cumulative conditions of protection set out in section 43G, even if one defines "in good faith" as requiring simply "honesty of intention", that still requires more than a reasonable belief in the truth of the allegations made. The draftsman must be taken to have intended some additional, even if partially overlapping, requirement with that of reasonable belief in the truth of the disclosure, when continuing in section 43G(1)(a) the requirement of good faith in the earlier provisions of Part IVA of the 1996 Act.
49. As to overlap, I have already noted that the absence of a reasonable belief in the truth of a disclosure may be capable of indicating bad faith. Why else would a worker make such a disclosure if he did not reasonably believe in is truth? There is, as I have also noted, and Mr Donovan has acknowledged, scope for overlap between the requirement of good faith and that of reasonableness in section 43G(1)(e).
50. There is a similar problem of overlap, which does not arise on the finding of the Tribunal in this case, namely that between a disclosure not made in good faith and one made for personal gain. Depending on the width of the construction of the latter and its nature in any particular case,^[2] there is clearly scope for motivation of personal gain to negative good faith. But it may be a sufficiently justified motivation to pass the good faith requirement but not that of the absence of motivation of personal gain. So, depending on the outcome, it may be academic where personal gain is the, or the main, motivation for disclosure, whether it also serves to negative good faith – the disclosure loses its protection anyway. And here the specific requirement of the absence of a motivation of personal gain in section 43G(1)( c ) may not be otiose any more than that of reasonableness in section 43G(1)(e), depending on the circumstances, for example where the ulterior motive is not for personal gain and might be considered reasonable, but is not made for any of the purposes for which section 43B provides protection.
51. It is against that large but not total overlap, or of "overkill", or sheer untidiness of drafting on the part of the parliamentary draftsman of section 43G, that the Court must consider the argument of Mr Donovan and Public Concern, that the requirement in section 43G(1)(c) of the disclosure not having been made for purposes of personal gain would be otiose if motive were relevant to the requirement of good faith.
52. It follows that, in my view, section 43G provides a collection of partially overlapping requirements, any one of which, if not fulfilled, will defeat a worker's right to maintain that his disclosure is "protected" within the meaning of the Act. Whether, in the circumstances of any particular case, the claim is defeated on that account is essentially a matter for the Employment Tribunal to assess on a broad and common-sense basis as a matter of fact, in the light of each of requirements in paragraphs (1)(a) to (e) of the section. Whether it approaches the question through one or more than one of those requirements and whether or not they overlap is essentially a matter for its evaluation on the evidence before it.
53. In considering good faith as distinct from reasonable belief in the truth of the disclosure, it is clearly open to an Employment Tribunal, where satisfied as to the latter, to consider nevertheless whether the disclosure was not made in good faith because of some ulterior motive, which may or may not have involved a motivation of personal gain, and/or which, in all the circumstances of the case, may or may not have made the disclosure unreasonable. Whether the nature or degree of any ulterior motive found amounts to bad faith, or whether the motive of personal gain was of such a nature or strength as to "make the disclosure for purposes of personal gain" or "in all the circumstances of the case" not reasonable, is equally a matter for its assessment on a broad basis.
54. When I first drafted this judgment I was of the view that, in the case of the requirement of "in good faith" (I say nothing in this respect about motivation of personal gain because it is not an issue in the appeal), such an assessment should not, in my view, be cluttered with notions of predominance or degrees of predominance, as suggested by Public Concern and adopted by Mr Donovan as a "fall-back" submission. In each case the answer one way or the other might be a "judicial elephant" emerging from the Tribunal's consideration of all the evidence. I considered that it could be unhelpful, often unreal when the countervailing considerations are of quite a different nature, and unduly prescriptive to introduce into the exercise an explicit formula of the sort suggested by Public Concern that an ulterior motive should only negative good faith when it is so wicked and/or malicious as to be or to approach dishonesty and is the predominant motive for the disclosure.
55. However, I began to have second thoughts when considering the sort of circumstances to which Employment Tribunals should have regard, and the possibly different weight it might have to attach to some of them, when conducting this imprecise exercise, especially having regard to the overlapping requirements whether a disclosure was made in good faith, not for personal gain and reasonably. Such an exercise could require the Tribunal to consider and evaluate the cumulative effect of a wide range of factors such as how serious and how wide-ranging are the effects of the failure, how old it is and the potential for disproportionate damage it could do to the employer whether the allegation turns out to be true or false. The Tribunal would also have to keep in mind what is common-place in such a context, that a failure or refusal by an employer to remedy a perceived failure of duty and/or injustice to a worker is often likely to engender in him an understandable resentment or antagonism that may grow if the matter is not remedied quickly. That, in itself, should not necessarily be regarded as negativing good faith if, when making the disclosure, the worker is still driven by his original concern to right or prevent a wrong.
56. On further reflection, it seems more in keeping with the declared public interest purpose of this legislation, fair and a more useful guide to Employment Tribunals in conducting this sometimes difficult, sometimes straightforward, exercise – depending on the facts - to hold that they should only find that a disclosure was not made in good faith when they are of the view that the dominant or predominant purpose of making it was for some ulterior motive, not that purpose. I have also been prompted to that view by the analysis, to which Mr Donovan drew our attention, of Lord Diplock in Horrocks v Lowe [1975] AC 135, at 150, a case of defamation, of the state of mind required to constitute malice so as to deprive a defendant of the defence of qualified privilege:

"Even a positive belief in the truth of what is published on a privileged occasion – which is presumed unless the contrary is proved - may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true. [my emphases]

Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth of falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that 'express malice' can properly be found."

57. Now, I acknowledge that the fit is not exact between the circumstances in which, in defamation, malice may defeat a defence of qualified privilege and in which, in this legislation, want of good faith may deny a worker's disclosure of its protected status. First, in defamation, positive belief in the truth of the statement, whether reasonably held or not, suffices as a starting point. Second, malice is a sharper concept than bad faith and, on the whole, sets a higher threshold of proof than might be required for other or lesser forms of bad faith. Nevertheless, it seems to me a useful pointer for Employment Tribunals to look at Lord Diplock's analysis as he expressed in the first of the two paragraphs in that passage in his references to the "dominant motive". They should similarly, in my view, look for the "dominant" or "predominant" purpose of a disclosure when considering whether it was made in good faith. However, I would not go so far as to fine-tune that test by adopting the proposal of Public Concern and/or the "fall-back" submission of Mr Donovan that there should be high degree of predominance, possibly, as Mr Donovan suggested, expressed in minimum percentage terms. Nor, with respect, am I persuaded along that route by Lord Diplock's suggestion to like effect in the concluding words of second paragraph of the passage above that it is only when a defamer's.

"desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that 'express malice" can properly be found" [my emphasis]

I say that because that formulation seems to go further than his proposition of "dominance" or "predominance" of malicious motive in the first paragraph, and also because of what, depending on the facts, may often be the higher threshold necessary for the proof of malice in defamation than bad faith in this legislation.

58. In my view, where, as here, the Employment Tribunal was driven on the evidence to conclude, as it did, that none of Mrs Street's disclosures "could be regarded as made in good faith, but were instead motivated by … [her] personal antagonism toward Mr Hampton", it is plain, as the Employment Appeal Tribunal stated in paragraph 25 of its judgment, that it found that such personal antagonism was her dominant, if not her sole, motive. In my view, the Employment Appeal Tribunal was right not to interfere with that finding. Looked at against the broader public policy interest behind this legislation, protection of such powerfully motivated disclosures could not be said in the circumstances to serve or encourage subversion of the Act's declared overall purpose of the Act of protecting those "who make certain disclosures of information in the public interest".
59. Accordingly, I would dismiss the appeal.

Lord Justice Jacob:

60. I agree.

Lord Justice Wall:

61. I have had the opportunity of reading Auld LJ's judgment in draft, and I am in complete agreement with him that this appeal should be dismissed for the reasons he gives. I add a short judgment of my own largely because this appeal raises directly the important question of what is meant by "good faith" where it appears in Part IVA of the Employment Rights Act 1996 (ERA 1996). On this point we not only heard argument from the bar, but admitted a document from Public Concern at Work (colloquially known as "the whistle-blowing charity") to which Auld LJ refers at paragraph 34 of his judgment.
62. I should, however, like to preface my remarks by expressing my gratitude to counsel on both sides (both of whom appeared pro bono) for the clear and helpful way they advanced their respective arguments.
63. I am in no doubt at all that, on the facts of this case, the Employment Tribunal was entitled to reach the conclusion that the disclosures made by the Appellant were not made in good faith but were instead motivated by her personal antagonism towards Mr Hampton fuelled in particular by his perceived treatment of Mr Skinner's and Councillor Williams' cases. They were, moreover, in my judgment, entitled to reach that conclusion whilst at the same time making a finding that the Appellant reasonably believed that the information disclosed, and any allegation contained in it, were substantially true (ERA 1996, section 43G(1)(b)).
64. Furthermore, in my judgment, the Tribunal approached the case in exactly the right way. Having recited the facts in some detail and with great care, they then set out the relevant sections of the Statute and proceeded to work their way through them. They asked, firstly: did the appellant make a protected disclosure or disclosures? They then continued:

In order to assess this question, we direct ourselves that the scheme of the legislation is that we must first look to the content of what is disclosed (whether it is a qualifying disclosure) and then if appropriate consider the person or persons to whom the disclosure was made together with an assessment of the motive and means by which the disclosure is made.

65. The Tribunal then proceeded conscientiously to perform that exercise. When they reached section 43G they found that the Appellant "in general terms satisfied the vast majority of the conditions imposed by section 43G". That, however, left good faith, which they then examined. They then gave clear reasons for their conclusion (identified in paragraph 3 of this judgment) that the Appellant was not acting in good faith. Auld LJ has summarised in paragraph 29 of his judgment the findings of fact they made in reaching that conclusion and which I need not repeat.
66. The issue of whether or not a protected disclosure is made in good faith is, self-evidently and pre-eminently an issue of fact for the Employment Tribunal sitting as the industrial jury. Here, there was manifestly material upon which the Tribunal could make appropriate findings of fact: they did so, and explained why they did so. There is no suggestion that their findings were perverse. Accordingly, unless the Tribunal have committed an error in law in their application of the Statute, their decision is unimpeachable.
67. For the Appellant, Mr Donovan's primary argument was that "in good faith" meant "honestly". For this proposition, he relied principally on the judgment of Megaw LJ in Central Estate (Belgravia) Ltd v Woolgar; Liverpool Corporation v Husan [1972] 1 QB 48 at 57. Accordingly, he submitted, once the Tribunal had found that the provisions of section 43G(1)(b) were satisfied, that should have been the end of the matter so far as good faith was concerned: a person who is acting honestly cannot be acting in bad faith.
68. For all the reasons given by Auld LJ, I am unable to accept this argument in the context of section 43G of the 1996 Act. In my judgment it is manifest that a person may reasonably believe that the information disclosed and any allegation contained in it are substantially true, and still not make the disclosure in good faith. If good faith in section 43G meant simply a reasonably belief in the truth of the information disclosed, the inclusion of good faith in the check-list of factors contained in section 43G(1)(a) to (e) would be otiose. Moreover, good faith is a question of motivation, and as a matter of general human experience, a person may well honestly believe something to be true, but, as in the instant case, be motivated by personal antagonism when disclosing it to somebody else.
69. If, however, good faith is not to be equated with honest belief in the truth of the disclosure, how is it to defined? This is the point which I have found most difficult in the case. I am firmly of the view that it is not the function of appellate courts to superimpose a gloss onto the plain words of a Statute. The mischief of such a course is obvious. Forensic attention thereafter tends to focus on the gloss rather than the words of the Statute, with the result that a body of jurisprudence swiftly develops on what is meant by the gloss. Like Auld LJ, therefore, my initial instinct was to treat the concept of good faith as a form of judicial elephant: difficult to define, but readily identifiable through the good sense and fact finding capabilities of Employment Tribunals. That would have been my preferred course, possibly leaving the question of mixed motivation in making a protected disclosure until it specifically arose for decision.
70. Having listened to the argument, however, including Mr Donovan's adoption of the submission made by Public Concern at Work, and having read Auld LJ's judgment, I am reluctantly persuaded that this will not do, and that this court should address (albeit in a limited and cautious form) the extent to which mixed motivation can undermine the protection given to the disclosures identified in section 43B(1) of the 1996 Act.
71. Part IVA of the 1996 Act protects the disclosure of information relating to the issues identified in section 43B. The primary purpose for the disclosure of such information by an employee must, I think, be to remedy the wrong which is occurring or has occurred; or, at the very least, to bring the section 43B information to the attention of a third party in an attempt to ensure that steps are taken to remedy the wrong. The employee making the disclosure for this purpose needs to be protected against being victimised for doing so; and that is the protection the Statute provides.
72. Motivation, however, is a complex concept, and self-evidently a person making a protected disclosure may have mixed motives. He or she is hardly likely to have warm feelings for the person about whom (or the activity about which) disclosure is made. It will, of course, be for the Tribunal to identify those different motives, and nothing in this judgment should derogate from the proposition that the question for the Tribunal at the end of the day as to whether a person was acting in good faith will not be: did the applicant have mixed motives? It will always be: was the complainant acting in good faith?
73. In answering this question, however, it seems to me that Tribunals must be free, when examining an applicant's motivation, to conclude on a given set of facts that he or she had mixed motives, and was not acting in good faith. If that is correct, how is it to be done? I can see no more satisfactory way of reaching such a conclusion than by finding that the applicant was not acting in good faith because his or her predominant motivation for disclosing information was not directed to remedying the wrongs identified in section 43B, but was an ulterior motive unrelated to the statutory objectives.
74. It would, of course, be folly to attempt to list what could constitute ulterior motivation or bad faith. The present case provides one example. Ulterior motivation, I am satisfied, is something that Tribunals will be able both to identify and to evaluate on the facts of the individual case.
75. In these circumstances, I am persuaded by paragraph 57 of Auld LJ's judgment that it should be open to Tribunals when looking at the question of good faith under the 1996 Act Part IVA to conclude that an applicant was not acting in good faith if his or her predominant motivation was not to achieve the primary objective which I have identified in paragraph 71 of this judgment. In my judgment, this provides sufficient protection for whistleblowers, and does not undermine the protection given by the Act. It recognises that human beings have mixed motives. It will, I hope, enable Tribunals to make assessments on a straightforward analysis of the evidence.
76. For these reasons, which complement those given by Auld LJ, I too would dismiss this appeal.

Order:

77. The appeal be dismissed
78. There be no order as to costs

Note 1   See also section 43H “Disclosure of exceptionally serious failure”    [Back]

Note 2   Note section 43L(2) of the 1996 Act, which provides that any reward payable by or under any enactment for a disclosure is not to be regarded as personal gain for this purpose.    [Back]