United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MICHAEL KALLIPETIS QC (of Counsel) MR JEREMY LEWIS (Junior) (of Counsel) Instructed by: E. Edwards Son & Noice Three Horseshoes House 139 High Street Billericay Essex CM12 9AF
For the Respondent	MR MARK SUTTON (of Counsel) Instructed by: Messrs Barlows Solicitors Guildford House 66 Guildford Street Chertsey Surrey KT16 9BB


 


JUDGE D SEROTA QC

1. This is an appeal by the Applicant, Geoffrey Darnton from a Decision of the Employment Tribunal at London South, promulgated on 27 June 2001. The Chairman was Mr D Booth. The Employment Tribunal determined that Mr Darnton had not made a protected disclosure within the meaning of part IV(A) of the Employment Rights Act 1996. There was a preliminary hearing before the EAT presided over by His Honour Judge Pugsley on 26 November 2001. On that occasion Mr Kallipetis QC who appears for Mr Darnton produced a slimmed down amended Notice of Appeal to replace that originally served by Mr Darnton and the matter was allowed to proceed to a full hearing.
2. On 19 January 1996 Mr Darnton wrote a letter to the Respondent and the issue on this appeal is as to whether or not he was protected by the provisions of Part IV(A) of the Employment Rights Act which were inserted by the Public Interest Disclosure Act 1998. These provisions are designed to protect "whistleblowers". The letter of 19 January 1996 is produced as an appendix to this judgment.

Factual Background

3. The following matters are taken from the findings of the Employment Tribunal. On 8 March 1999 Mr Darnton was employed by the Respondent as a full time lecturer at Surrey European Management School (SEMS) which was headed by Professor Gamble. Shortly after Mr Darnton's employment began, he and Professor Gamble began to clash. We record that the Employment Tribunal found that Mr Darnton and some of his colleagues regarded Professor Gamble as abrasive, arbitrary and sometime unreasonable. The Employment Tribunal regarded Professor Gamble as a powerful personality who had set up the school which was a successful income generator for the University. The Employment Tribunal found that Professor Gamble clearly enjoyed the support of the authorities. He expected, as he had the right to, support from his staff and did not expect the open criticism of the school and its methods, to third parties, which he later heard from Mr Darnton. Nor did he expect troublesome and extended interviews and e mails about hours of attendance and travel arrangements. His style, though it clearly upset some members of his staff, had ensured that the school prospered in a competitive world. Mr Darnton, who had come to SEMS from a period of self-employment quite clearly did not expect the controlled atmosphere he met and was not slow to criticise it, nor was he prepared to accept the regime of SEMS.
4. Mr Darnton's practice was to leave work relatively early most days so that he could return to South Wiltshire where he lived, although he would stay somewhat later on at least one day each week. The usual attendance of lecturers was from 9 am to 5.30 pm. Professor Gamble was prepared to agree that Mr Darnton need not work these hours for the first few months of his employment. However on 1 June 1999 he noted Mr Darnton leaving at 4.30 pm and e mailed him and asked him to observe the hours 9 - 5.30. The parties met and concluded a written agreement about Mr Darnton's hours of work. Mr Darnton then took the opportunity to launch a serious attack on Professor Gamble, referring to his "ridiculous management style".
5. Mr Darnton and Professor Gamble later had a significant disagreement on the amount of time required to be spent on marking assignments. Mr Darnton accused the Respondent of serious academic malpractice because he was unable to mark a 5,000 word project in twenty minutes. Mr Darnton, however, did not appreciate that the twenty minute period related to a 2,000 word project; nonetheless he made this serious allegation.
6. There were further exchanges in June 1999 between Mr Darnton and Professor Gamble, relating to a request by Professor Gamble that Mr Darnton should confine critical comments about procedures or colleagues to him. He invited Mr Darnton to attend a meeting on 22 June and reminded him that his post was probationary for six months. There were a number of other disagreements between Mr Darnton and Professor Gamble that we need not set out. On 28 June 1999 Mr Darnton sent a memorandum to Professor Gamble stating that he felt threatened and harassed and was awaiting advice from professional advisers. In July 1999 Mr Darnton and Professor Gamble clashed over a CourseWare learning manual. Professor Gamble maintained that Mr Darnton was slow in producing the manual, whereas Mr Darnton claimed he had been given insufficient time. They had a further disagreement over overseas travel; Mr Darnton wished to extend a visit but his request to do so was refused. Mr Darnton then sent a petulant e mail to Professor Gamble, who reciprocated in kind.
7. The relationship between Mr Darnton and Professor Gamble was such that Mr Darnton, in July, made enquiries about the University's grievance procedure and proposed to the University that he should cease employment on certain terms; on 2 August, Mr Darnton met Mr Alan Behagg of the University's personnel department, and complained about bullying and harassment by Professor Gamble.
8. On 4 August 1999, Mr Darnton and Professor Gamble agreed that Mr Darnton and the University should part company. It was agreed that Mr Darnton would leave on terms as from 8 September 1999. Those terms included the provision of a twelve month associate lecturership to Mr Darnton for work to be valued at £20,000. He was also paid a severance payment of £19,000 tax-free. Mr Darnton took legal advice on the agreement. On 14 October 1999, Mr Darnton found a permanent job in Bournemouth and resigned from the teaching part of his lectureship. The University expected Mr Darnton to do some work, but regarded the agreement to provide him with £20,000 worth of work as being at an end. Mr Darnton, on the other hand, considered that the agreement stood and he was entitled, so he believed, to accept or reject work as he thought fit. We record that the Employment Tribunal disagreed with Mr Darnton's view of the matter. On 19 January Mr Darnton wrote the letter which is appended to this judgment to the Vice-Chancellor and sent a copy to the Chancellor. On any showing this letter does no credit at all to Mr Darnton as a University lecturer. It is full of intemperate language and complaints about Professor Gamble. Notwithstanding that he had entered into a compromise agreement with legal advice, he now demanded additional compensation as well as a suspension of Professor Gamble.
9. On 28 January 2000, Professor Kangis, the Deputy Head of SEMS sent an e mail to Mr Darnton to the effect his services were no longer required. He issued his Originating Application on 27 April 2000.

The Law

10. As we have said, Part IV(A) of the Employment Rights Act 1996 was designed to protect whistle blowers. Section 43A defines the term "protected disclosure" as meaning:

"a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H)."

Section 43B defines the term "qualifying disclosure" as meaning:

"any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following -

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the proceeding paragraphs has been, or is likely to be deliberately concealed."

We would also note section 43(5) which defines the term "the relevant failure" in relation to a qualifying disclosure, as meaning the matters falling within paragraphs (a) to (f) of subsection (1)1.

11. Section 43C provides as follows: (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith -

(a) to his employer …."

It is also helpful to have regard to some other provisions of Part IVA. Section 43E provides that a qualifying disclosure can be made by workers for an employer appointed under an enactment or by a body, any of whose members are so appointed and:

"the disclosure is made in good faith to a Minister of the Crown [or a member of the Scottish Executive]."

Section 43F provides that a qualifying disclosure can be made if made in good faith by the worker to a person prescribed by an order made by the Secretary of State where the worker:

"(b) reasonably believes -

(i) that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and

(ii) that the information disclosed, and any allegation contained in it, are substantially true."

12. Section 43G provides that a disclosure to someone other than the employer can be regarded as a qualifying disclosure in certain circumstances, where a worker who has made disclosures to his employer and believes reasonably that he will be subjected to a detriment by his employer, if he makes a further disclosure to the employer or in accordance with section 43F. In such a case the disclosure is a qualified disclosure if made by the worker in good faith, and the worker:

"(b) ,..reasonably believes that the information disclosed, and any allegation contained in it, are substantially true, ….."

Section 43H provides that a disclosure also qualifies for protection if the relevant failure is of an exceptionally serious nature and it is, in all the circumstances of the case, reasonable for the worker to make a disclosure provided it is made in good faith and :

"(b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true, ….."

Section 43K provides an extended definition of "worker" for the purposes of Part IVA.

13. At this point in time it is perhaps helpful to note the following. Firstly, Mr Darnton's case is that his disclosures qualified for a protection under section 43B because in his reasonable belief they tended to show that a criminal offence had been committed by the University or that the University was in breach of various legal obligations. Secondly, we note that there is no issue in this case that Mr Darnton was a worker within the meaning of section 43K and that he was subjected to detriment by the termination of his agreement with the University by reason of having written the letter of 19 January 2000.
14. Thirdly, we also note that whereas in section 43B a disclosure qualifies for protection, if in the reasonable belief of the worker, it tends to show a relevant failure whereas in section 43F, 43G and 43H the worker if his disclosure is to qualify for protection must show that he reasonably believed the information disclosed and any allegation contained in it were substantially true.

The Decision of the Employment Tribunal

15. The Employment Tribunal appear to have adopted the submissions of Mr Sutton, Counsel for the University as to the general approach.

"32 Mr Sutton argued that the disclosure is only protected if it complies with the requirements of section 43B. We should therefore go through his letter to the Vice-Chancellor carefully, isolate from it the disclosures as opposed to the general complaints, demands for money and vituperation and decide whether in the reasonable belief of Mr Darnton the information tended to show either that a criminal offence had been committed or that the Respondents had failed to comply with any legal obligation to which they were subject ……"

Consistently with that approach, the Employment Tribunal examined the letter of 19 January to isolate from it those parts which they considered to be disclosures and to decide whether they qualified. The first disclosure related to the compromise agreement which Mr Darnton complained had come about after a period of harassment and intimidation by Professor Gamble. The Employment Tribunal then had this to say:

"On the facts we have found and after careful examination of both the verbal evidence, witness statements and the e-mails, we cannot agree with the Applicant that these actions could be described as harassment and intimidation. In our experience of the world of work, different managers have different styles and it seems to us that Mr Darnton only a few months into the job, constantly challenged in an abrasive way, Professor Gamble's management of the school. We cannot believe that an intelligent man such as Mr Darnton could reasonably have believed that the facts we have found amounted to such serious behaviour as could be described as criminal harassment or a breach of trust and confidence."

[our italics]

16. One finds a similar approach in paragraphs 40 - 42 of the Decision.

(a) The Employment Tribunal did not regard the compromise agreement as being coerced out of Mr Darnton; (we note in passing that Mr Behagg was not called to deny Mr Darnton's allegation that he had threatened to damage Mr Darnton academically if he did not agree to the settlement agreement).

(b) The Employment Tribunal did not find on the evidence that the alleged toleration of Professor Gamble's attitude by the University was proved.

(c) They found that Mr Darnton had not asked Professor Gamble about staff turnover at his interview, so the allegation that his services had been acquired by deception could not be regarded as qualifying for protection;

(d) Although the Employment Tribunal was satisfied that other staff were dissatisfied with Professor Gamble's management, none of them had complained to him or the University about it.

(e) The Employment Tribunal did not consider that Professor Gamble's request that all complaints should be addressed to him could constitute a breach of the code of practice required under section 43 of the Education (No 2) Act 1986 and thus constitute a breach of a legal requirement.

17. The approach of the Employment Tribunal was to look at the various allegations identified by the Employment Tribunal as being contained in the letter of 19 January, with a view to determining whether they were factually correct. The Employment Tribunal having found they were not factually correct, went on to find that consequently, there was no disclosure that qualified for a protection. We quote from paragraph 43 and 44:

"43. It follows from all that that our examination of that letter does not reveal that any elements of it amount to a qualifying disclosure and this application must therefore fail on those grounds.

44. It seems to us also from this analysis and the tone of the letter as a whole, that it is doubtful whether it was made in good faith as required by section 43(c)."

The Employment Tribunal do not appear to have asked themselves the question required by section 43B, namely whether in the reasonable belief of Mr Darnton, the disclosure tended to show a relevant failure. We should add, in fairness to Mr Sutton, that this approach was not in accordance with his submissions to the Employment Tribunal. Mr Sutton had submitted:

"that the Tribunal is required to consider firstly whether, at the time he made the purported disclosures, [Mr Darnton] did in fact believe the subject matter of the complaint fell within one of the sub-categories in section 43B; and secondly whether such belief was reasonable"

The parties' submissions

18. The thrust of the submissions of Mr Kallipetis was that the Employment Tribunal had failed to ask itself the correct question, and it should have followed the statutory language, but failed to do so. He submitted that the Employment Tribunal concentrated too much on the question of whether the allegations were correct. He submitted that the Employment Tribunal should have asked itself whether Professor Darnton could reasonably believe the information he disclosed tended to show a relevant failure. The statute did not require Mr Darnton to reasonably believe that the allegation was in fact true. He pointed to paragraph 39 of the Decision, which he submitted, clearly showed that the Employment Tribunal decided the matter on the basis of the facts as found by the Employment Tribunal rather than as reasonably believed to be by Mr Darnton. Mr Kallipetis went so far as to submit that findings as to the correctness of the underlying facts were irrelevant in determining whether Mr Darnton held the reasonable belief that the disclosure tended to show a relevant failure. He submitted that it was not necessary for an Applicant to believe in the truth of the allegation for that allegation to qualify for protection. Issues of good faith only arose at a later stage. The question that the Employment Tribunal should ask itself is whether the employer "could reasonably believe" that the allegation was true, not whether he in fact did reasonably believe that the allegation was true. He suggested that there was a distinction between a qualifying and a protected disclosure. The qualifying disclosure concentrates upon the information disclosed rather than its correctness. Reasonable belief was limited as to what the information tended to show. The reasonable belief referred to in section 43B(1) was a reasonable belief that the information tended to show a relevant failure. Mr Kallipetis made the surprising submission that there was no need for the worker to believe in the truth or in the accuracy of the information for it to be a qualifying disclosure under section 43B.
19. Mr Kallipetis further submitted that in determining whether the information "tends to show" a relevant failure, the Employment Tribunal should look at matters from the perspective of the worker, not on the basis of the facts they had found. They should focus on the information and what that information tends to show in the worker's reasonable belief. The context might affect what the information tends to show; from the worker's perspective, the information may suggest that there has been a breach of a legal obligation. The worker may not know all of the context, the employer is in a better position to judge what the information suggests. It is not for the worker, Mr Kallipetis submitted, to go "sleuthing" and he should be at liberty to make disclosure without fear.
20. Mr Kallipetis, as one would expect, pointed to the differing provisions for qualifying disclosures under Part IVA. The reason there is no specific requirement of reasonable belief in the truth of the allegations in section 43C, he submitted was to encourage employees to report matters of concern to their employers. Section 43C was to be distinguished from cases where there was a requirement that the worker should believe the allegations to be substantially true, as in sections 43F - 43H. In these sections, as we have noted, a worker is required to reasonably believe that information disclosed and allegations contained in it were substantially true. If the worker seeking to qualify a disclosure for protection under section 43B, was required, on reasonable grounds, to believe that the allegation was substantially true, those words would be otiose in sections 43F - 43H. There was no reason, Mr Kallipetis submitted, why a dishonest and malicious employee could not make a qualifying disclosure; we found this a surprising submission also.
21. Mr Kallipetis went through the various allegations identified and examined by the Employment Tribunal. He pointed out that the Employment Tribunal did not generally make findings as to what Mr Darnton believed, but rather they made findings as to what the facts actually were. They did not ask what it was that Mr Darnton believed. His overall submission was that the Employment Tribunal based its findings, having regard to the facts that it found, rather on whether the information disclosed, in Mr Darnton's reasonable belief, tended to show a relevant failure.
22. Insofar as the allegation of good faith was concerned, Mr Kallipetis points to the tentative way in which the Employment Tribunal dealt with the matter at paragraph 44. In the absence of specific findings as to why the letter might not have been written in good faith, he submits, on the well known principles in Meek -v- City of Birmingham District Council [1987] 250 and Anya -v- University of Oxford [2001] that there is a critical need for an Employment Tribunal to make adequate findings of fact and explain the basis upon which it came to those findings. Mr Kallipetis submits that the matter should be remitted to be determined by a differently constituted Tribunal.
23. We now turn to consider the submissions made by Mr Sutton, on behalf of the University. At one point in time, Mr Sutton was disposed to go so far as to submit that for a disclosure to qualify for protection as the qualifying disclosure, it was necessary that the worker should hold a reasonable belief in the truth of the allegation, as well as a reasonable belief that it tended to show a relevant failure. However, in his supplemental submission, he submitted as follows:

"For the purposes of disclosure to an employer, a worker, it is submitted, can act on a hunch and need not necessarily demonstrate that he has carried out any critical probing or assessment of the substantial truth of the information as required in the case of disclosures to other agencies elsewhere in ERA Part IVA. Mischievous disclosures (or disclosures with some improper ulterior motive) will be caught by the good faith requirement under s.43C. But, in order to satisfy the criterion of reasonable belief for the purposes of s.43(b), the University would suggest that the worker must believe, on reasonable grounds, that the information comprising disclosure is apparently credible and substantial. His belief that such information comprises a 'relevant failure' must also be genuinely held and objectively reasonable."

24. Mr Sutton was minded to characterise Mr Kallipetis' submission that reasonable belief was limited to the connection between the information disclosed and the relevant failure as too restrictive and absurd. He submitted that the Employment Tribunal is not bound to take at face value information set out in the disclosure. If the Employment Tribunal is not satisfied that the worker believed, on reasonable grounds, that the information was true, it is unlikely that the Employment Tribunal could find that reasonable belief that the disclosure tended to show a relevant failure could be made out. The Employment Tribunal is bound to investigate underlying facts as part of the exercise to determine both whether the worker reasonably held the belief and as to the good faith of the disclosure. A lack of reasonable belief in the truth underlying the disclosure would, of course, be highly relevant to determining whether a worker could show that the disclosure was made in good faith, pursuant to section 43C(1).
25. Mr Sutton accepted that in determining whether a disclosure qualified for protection, the Employment Tribunal is not primarily concerned with the truth of the allegation. However, there must be some enquiry into the surrounding circumstances to determine whether the appropriate belief is held reasonably. Facts are a vital part of that enquiry. Mr Sutton submitted that the Employment Tribunal was entitled to investigate the surrounding circumstances to determine whether the belief was reasonable; that is an essential part of their task.
26. So far as the present case was concerned, although not explicitly stated by the Employment Tribunal, it was submitted that the Employment Tribunal found, in relation to each allegation that Mr Darnton did not reasonably believe they tended to show a relevant failure. By way of example, he pointed to paragraph 40 of the Decision, where although the reasoning was not fully set out, the Employment Tribunal found that Mr Darnton could not reasonably regard Professor Gamble's conduct as amounting to harassment and intimidation, and thus coercion. The Employment Tribunal asked whether the disclosures should be regarded as qualifying disclosures and found that Mr Darnton did not hold a reasonable belief that they tended to show relevant failures. Further, they were not satisfied that he had acted in good faith. Mr Sutton pointed to a number of findings made by the Employment Tribunal which were material to the issues, both of reasonable belief and good faith.

(a) Mr Darnton's assertion that he had asked about turnover of academic staff at his interview with Professor Gamble was not accepted (paragraph 10).

(b) Mr Darnton petulantly complained that the rules were being changed by the day (paragraph 16).

(c) Mr Darnton's reply to a request that he confine critical comments to direct conversation with Professor Gamble was, to say the least, negative, calling for further investigation and clarification and again requiring to see the written source of the policies (paragraph 18).

(d) Professor Gamble expected to have the right to the support of his staff and did not expect the open criticism of the school and its methods to third parties which he heard from Mr Darnton, nor did he expect troublesome extended interviews and e mails about hours of attendance and travel arrangements (paragraph 22).

(e) Mr Darnton, who had come to the school from a period of self-employment, quite clearly did not expect the controlled atmosphere he met and was not slow to criticise it, nor was he prepared to accept the regime of the school (paragraph 22).

(f) It could not reasonably be in Mr Darnton's mind that having attained £19,000 tax free, plus an offer of £20,000 more work over a year, that he could then take a full time job, thus disqualifying himself from day time work at Surrey, but he would still be under the obligation to fill his evenings and weekends as he saw fit (paragraph 25).

(g) Mr Darnton, only a few months into the job, constantly challenged, in an abrasive way, Professor Gamble's management of the school (paragraph 39).

(We have taken these matters from Mr Sutton's Further Written Submissions dated 3 September 2002)

Mr Sutton addressed us on the finding relating to good faith at paragraph 44 of the Decision . He submitted that Mr Darnton needed to satisfy the Employment Tribunal of his good faith. The Employment Tribunal, even if it did not express his views clearly, manifestly came to the conclusion that it did not accept Mr Darnton's good faith. Mr Sutton accepted there were defects in the quality of the reasoning, but not sufficiently so as to invalidate the Decision.

27. Mr Sutton concluded that on the merits, it was overwhelmingly disproportionate to remit the matter for hearing by another Tribunal, however if we were to find reasons given inadequate, we might send the matter back to the original Tribunal for specific consideration of those matters which were not dealt with adequately. It was unfair to re-open the entire proceedings.

The Law

28. In our opinion, it is essential to keep the words of the statute firmly in mind; a qualifying disclosure is defined, as we have noted on a number of occasions, as meaning any disclosure of information which in the reasonable belief of the worker making the disclosure tends to show a relevant failure. It is not helpful if these simple words become encrusted with a great deal of authority. We are unable to accept Mr Kallipetis' submission that the worker's belief in the truth of the factual allegations he makes, as opposed to what the allegations "tend to show" is always irrelevant to the issue of reasonable belief, but is only relevant as to whether the disclosure is made in good faith. We are equally unable to accept Mr Sutton's submission that the worker must believe in the accuracy of the factual basis of the disclosure on reasonable grounds. Circumstances that give rise to a worker reporting a protected disclosure will vary enormously from case to case. The circumstances will range from cases in which a worker reports matters which he claims are within his own knowledge, or have been seen or heard by him. At the other extreme will be cases where the worker passes on what has been reported to him, or what has been observed by other persons.
29. In our opinion, the determination of the factual accuracy of the disclosure by the Tribunal will, in many cases, be an important tool in determining whether the worker held the reasonable belief that the disclosure tended to show a relevant failure. Thus if an Employment Tribunal finds that an employee's factual allegation of something he claims to have seen himself is false, that will be highly relevant to the question of the worker's reasonable belief. It is extremely difficult to see how a worker can reasonably believe that an allegation tends to show that there has been a relevant failure if he knew or believed that the factual basis was false, unless there may somehow have been an honest mistake on his part. The relevance and extent of the Employment Tribunal's enquiry into the factual accuracy of the disclosure will, therefore, necessarily depend on the circumstances of each case. In many cases, it will be an important tool to decide whether the worker held the reasonable belief that is required by section 43B(1). We cannot accept Mr Kallipetis' submission that reasonable belief applies only to the question of whether the alleged facts tend to disclose a relevant failure. We consider that as a matter of both Law and common sense all circumstances must be considered together in determining whether the worker holds the reasonable belief. The circumstances will include his belief in the factual basis of the information disclosed as well as what those facts tend to show. The more the worker claims to have direct knowledge of the matters which are the subject of the disclosure, the more relevant will be his belief in the truth of what he says in determining whether he holds that reasonable belief.
30. However, it is clear from the wording of the statute that the standard of belief in the truth of what is disclosed cannot be such as to require the employee making a qualifying disclosure, under section 43B, to hold the belief that both the factual basis of the disclosure and what it tends to show are "substantially true". Parliament has not sought to import into section 43B a requirement that the worker must hold the belief that the information and allegation disclosed are substantially true. Parliament has distinguished between sections 43F, 43G and 43H in which there is such a requirement, and section 43B in which there is not. There is no justification, in our opinion, for importing words which Parliament chose not to enact into section 43B
31. We have derived considerable assistance from "Whistleblowing: the New Law" by John Bowyers QC, Jeremy Lewis and Jack Mitchell. The learned authors write, at page 19, under the heading "Reasonable Belief in Truth":

"To achieve protection under any of the several parts of the Act, the worker must have a "reasonable belief" in the truth of the information as tending to show one or more of the six matters listed which he has disclosed, although that belief need not be correct (section 43B(1)). This had led some to criticise the statute as giving too much licence to employees to cause trouble, since it pays no regard to issues of confidentiality in this respect. Nor need the employee actually prove, even on the balance of probabilities, the truth of what he is disclosing. This is probably inevitable because the whistleblower may have a good "hunch" that something is wrong without having the means to prove it beyond doubt or even on the balance of probabilities. ……The notion behind the legislation is that the employee should be encouraged to make known to a suitable person the basis of that hunch so that those with the ability and resources to investigate it can do so.

The control on abuse is that it must have been reasonable for the worker to believe that the information disclosed was true. This means, we think, that the following principles would apply under the Act:

(a) It would be a qualifying disclosure if the worker reasonably but mistakenly believed that a specified malpractice is or was occurring or may occur.

(b) Equally if some malpractice was occurring which did not fall within one of the listed categories, the disclosure would still qualify if the worker reasonably believed that it did amount to malpractice falling within one of those categories.

(c) There must be more than unsubstantiated rumours in order for there to be a qualifying disclosure. The whistleblower must exercise some judgment on his own part consistent with the evidence and the resources available to him. There must additionally be a reasonable belief and therefore some information which tends to show that the specified malpractice occurred. ……

(d) The reasonableness of the belief will depend in each case on the volume and quality of information available to the worker at the time the decision to disclose is made. Employment tribunals will have to guard against use of hindsight to assess the reasonableness of the belief in this respect in the same way as they are bound, in considering liability in unfair dismissal cases, to consider only what was known to the employer at the time of dismissal or appeal ……"

32. These passages were criticised by Mr Kallipetis, but in our opinion, they are helpful and are a correct statement of the law. We agree with the learned authors that for there to be a qualifying disclosure, it must have been reasonable for the worker to believe that the factual basis of what was disclosed was true and that it tends to show a relevant failure, even if the worker was wrong, but reasonably mistaken.

Conclusion

33. We agree with Mr Kallipetis' analysis of the approach of the Employment Tribunal to the question of whether Mr Darnton held a reasonable belief that his disclosures tended to show a relevant failure. The Employment Tribunal in this case has departed from the statutory test; it did not ask whether Mr Darnton held the reasonable belief that what he was disclosing tended to show a relevant failure, but instead asked itself whether the factual allegations were correct. While, as we have said, determination of the accuracy of factual allegations may be a useful tool to determine whether the worker's belief is reasonable, reasonable belief must be based on facts as understood by the worker, not as actually found to be the case.
34. It may be that the Employment Tribunal did find that Mr Darnton did not hold the reasonable belief but it is impossible to say they came to that conclusion. We make it clear that in this case there was evidence as would have justified an Employment Tribunal in finding that Mr Darnton did not have a reasonable belief that his disclosure tended to show a relevant failure. Mr Sutton produced powerful arguments which we have recorded to show that the Employment Tribunal must have decided the case on the basis of the statutory test, and that it was satisfied that Mr Darnton lacked the appropriate reasonable belief. However, this is very far from clear, and we cannot be satisfied that the Employment Tribunal did so find, all the more so as the reasons given strongly suggest that their decision was based on the application of an incorrect test as to what is a qualifying disclosure.
35. In our opinion, the same holds true in relation to the question of good faith. The Employment Tribunal's Decision in this regard is brief and almost throwaway. The Employment Tribunal have not set out clearly why they rejected Mr Darnton's good faith and has given no satisfactory reasons for its determination. We say this despite the fact that there were ample grounds upon which the Employment Tribunal could have been satisfied that Mr Darnton did not make his disclosure in good faith. In the circumstances, it seems to us that this case must be remitted to a differently constituted Tribunal for determination in accordance with this judgment.
36. We would like to express our gratitude to Counsel for their helpful submissions and Skeleton Arguments. Their submissions were full but crisp and enabled us to deal with the matter well within the time allotted.
APPENDIX

The letter of 19 January 1996 is produced as an appendix to this judgment.

"As you may or may not recall, I was a University Management Lecturer in SEMS until 8^th September 1999.

After considerable reflection, the difficulty I am having in coming to terms with what happened, and the continuing problems with mild trauma and lack of concentration, I need to re-visit the whole circumstances under which my employment was terminated by the University. I am determined to see justice done and to ensure that no-one again suffers any more unreasonableness at the hands of Gamble. The problems I have encountered with him have been compounded substantially by the explicit connivance of the University in tolerating and condoning wholly unacceptable behaviour by a Head of School.

After a period of harassment and intimidation by Gamble, the saga came to end by Compromise Agreement coerced out of me by Gamble and the University. Let me remind you of the background and circumstances.

When I raised very serious concerns about Gamble's conduct I was still a probationer. Discussions took place about possible ways forward, primarily by leaving my past at SEMS. In the course of negotiations I was told that if we did not reach agreement and if I decided to remain in post and deal with him from that position, Gamble would just discredit me academically, supported by his Deputy, extend the period of probation, and then force me to leave after failing my period of probation.

Therefore the coercion by the University and Gamble lies in threatening me with being discredited academically leading eventually to removal from my post unless I enter into a Compromise Agreement. I have learnt that I can expect that kind of manipulative behaviour from Gamble. However, the really serious dimension to this problem arises from the University admitting that they know full well about Gamble's unacceptable and unreasonable behaviour but there is a deep institutional reluctance not to address these matters because SEMS generates so much cash for the University. It is astonishing beyond belief, and of course a wholly unacceptable and eventually untenable position for senior management in the University to give a person such a Gamble, an effective blank cheque to behave as he sees fit and whatever the unreasonableness the University will do nothing about it. The position must stop forthwith. You can imagine my reaction to discovering that Gamble is a well known serial offender in this way and I found it rather incomprehensible that there has been a long line of victims of Gamble's behaviour and yet senior management stand by and condone what he does because they are afraid of interrupting the cash flow. Clearly, fundamental principles and University Regulations concerning the conduct of staff have a very low price when it comes to such behaviour by a Head of School.

For the record, the dishonesty commenced during my interview. I asked explicitly about staff turnover during the interview. Gamble said there was little turnover and what there had been was for normal career progression. Neither he nor anyone else on the interview panel explained that several staff had left SEMS as a result of Gamble's management and academic styles. I have actually been advised that if this is true than there is the possibility of a criminal offence having been committed in the same way as an applicant who was dishonest in a CV (apparently something to do with the Theft Act and obtaining a pecuniary advantage by deception). Similarly, if the background to inducing me to enter into the Compromise Agreement actually constituted a conspiracy, the borderline between civil and criminal offence is very thin indeed.

In the course of negotiations, I was warned as I have indicated. Astonishingly Gamble then proceeded to issue a letter extending my period of probation on wholly unacceptable, unreasonable and fabricated grounds. Therefore the warning to me was exactly correct. Gamble put in place the first steps to discredit me academically and clearly he had no compunction about the destruction of my career. Why, I have no idea whatsoever, but I look forward to extracting a sincere apology or a credible explanation in due course. So far, I can only speculate about possible strange psychological needs around control.

Fortunately, the University itself at least mitigated the worst aspects of this by issuing an eventual formal recognition that I had completed my period of probation satisfactorily. However, this is very seriously tainted because the whole matter was not cleared up formally until I had furnished a formal resignation and clearly senior management were party to the terms of the Compromise Agreement itself. Therefore there was clear and unambiguous condoning of Gamble's conduct despite the admissions of unreasonableness.

As Gamble started unreasonable steps against me and demonstrated a willingness to destroy my academic career by a serious misuse of academic and management positions he has demonstrated that he is not fit to a Head of School or a Professor. Therefore I want his immediate suspension and removal from both positions. I am convinced that the University has more than sufficient knowledge in addition to my case to know that this should have happened a long time ago. I do not understand why the University has been content not to act as it should have done under its own regulations.

In addition to removing Gamble from his post, I feel that there should be an independent inquiry into the participation and connivance of any other senior University personnel who know about Gamble's behaviour but who are willing to compromise University Regulations and support Gamble as a serial offender.

The circumstances and facts of the coercion applied to me by Gamble and the University should be brought to the attention of Senate and Council. I should be compensated appropriately. There should be full rectification as far as it is possible of all breaches of University Regulations. I would like to take this opportunity to remind you of the explicit statement in the University's Guidelines for Dealing with Harassment. "Any act of harassment will be regarded by the University as more serious if it involves the abuse of the position of authority or trust".

In my case, the seniority of the people involved in coercing me to leave in support of Gamble's personal wishes meant that my Harassment Advisor was in the invidious position of having no-one to turn to, to remedy the harassment, because of the seniority of all those involved. My case was a clear case of harassment that reaches very high indeed in the University effectively nullifying the policy. Also, Gamble had written to me earlier, in terms, asking for my "forbearance in advancing open criticisms to me and my colleagues". That was before I had criticised anything and only for clarification, some of which was of profound academic significance (such as Gamble's instruction to me that I should spend an average of 20 minutes marking MBA/MSc projects of 5,000 words). Such an instruction to keep quiet and not express opinions or clarify academic issues is a clear breach of the Education (No 2) Act 1986 s43 and I require its investigation as such.

I understand the terms of the Compromise Agreement I have entered into but as you will know this is in respect of very limited rights. Therefore I am now seeking compensation in respect of all other matters. In addition to that, as the Compromise Agreement was obtained by conspiratorial coercion it is capable of being set aside and adjusted upwards.

In addition to the University unlawfully terminating my employment, I was also removed unlawfully from membership of the University (unless you can confirm that despite my employment ceasing I am still actually a member), I note that my removal from employment was treated entirely as an employment case, therefore the matter of University membership is still an issue.

I am determined to seek and obtain proper redress and to ensure (by appropriate undertakings or otherwise) that no-one else suffers as I have done (and the many others before me). Therefore I request and require your urgent attention to this matter and I seek an early resolution if possible.

This is what I want:

1 Resolution of my membership of the University without the need to became an employee again.

2 Compensation by way of damages for all matters other than the Employment Protection Act and Wages Act, but this is made without prejudice to any claim that may eventually be made if we do not reach agreement given the circumstances of coercion under which the original agreement was obtained.

3 Immediate suspension of Gamble from his post pending full investigation and appropriate disciplinary proceedings.

4 Alternatively to 3, the University probably already has enough facts for dismissal without compensation on grounds of serious misconduct (and I have not yet included potential matters of financial irregularity in this letter) - at least Gamble's dismissal would be reasonable, rather than the number of times he has affected someone else's unreasonable dismissal.

In view of the University's honest admissions earlier, I am willing to offer one opportunity to the University to deal with all matters decisively and expeditiously. If this letter is met with legalistic, over-defensive, or no response, then I shall move to different approaches to seek redress.

A particularly sad aspect of the University's continued support for Gamble's unreasonable behaviour appear to be its fear that the cash flow from SEMS would be compromised if Gamble were required to implement normal personnel and academic procedures. I understand the University's reluctance to do anything that might jeopardize the cash flow. I probably have more extensive and varied management and consulting experience than Gamble. There are many excellent people who could be Director of SEMS running very human policies with a higher level of income and easier staffing than at present. In the light of my experience I am firmly of the opinion now that the success of SEMS is not because of Gamble, but in spite of him. I also believe that my view is shared by most of the staff at SEMS.

I am writing to you with my very serious concerns and requirement and with some trepidation. I do not know how far the institutionalised acceptance of and support for Gamble's unreasonable behaviour goes. I know that HR are fully aware of all the issues. I know that the Registrar was party to the Compromise Agreement and therefore presumably is also familiar with my case and decided to support Gamble and not take any action that should have been taken under all the relevant regulations. I am curious to know how far you condone unreasonable behaviour by Gamble. I would like to think that not only do you not condone it but that you will always take positive and decisive steps against all unreasonable behaviour by members of the University and that you abide by the Harassment policy. I regret saying this, but unfortunately there is a widespread belief among the staff in SEMS that there is no point in raising serious concerns about Gamble because they will not be heeded or investigated. There is extensive belief that the career of anyone who complains or raises doubts will be very short-lived in SEMS afterwards - and they point to several cases.

During the discussions with various people leading up to the Compromise Agreement I was utterly astonished with the clear admissions and acceptance by the University of Gamble's behaviour. The admissions that it was unreasonable and that he is a known serial offender but that the University will do nothing to rectify the position stretch credibility. This is just unacceptable. It cannot continue. The University must confront and deal decisively with Gamble at some stage and I have decided it is going to be now - because so far the University has abrogated its clear responsibility. I hope that you will agree with me. Gamble should at least be suspended forthwith pending investigations an you already have sufficient information available to you to be able to justify such a course of action.

If you now decide to take the correct decision and proceed against Gamble I will support you where I can. If you do not, that I shall continue with great determination until I achieve satisfaction. Gamble and the University may have injured me so far but I can assure you that I have the stamina to see this through. I would prefer that it is all now dealt with properly and fairly with justice both done and seen to be done. I offer the University one more opportunity to put its own house in order and relatively privately. If this opportunity is declined than seeking satisfaction may well escalate beyond the ability of any of us to exercise control completely.

For your information, I am minded to pursue Gamble in a personal capacity. I find it morally repugnant that each time he is seriously unreasonable with someone working in SEMS he is permitted to fall back on the University's corporate liability. I will decide about this soon.

I look forward to a decisive and constructive response in the course of the next few days.

Yours sincerely

Geoffrey Darnton"