Court of Appeal rules on meaning of qualifying disclosure - UK

The Court of Appeal has overturned part of the much criticised decision in Kraus v. Penna and has decided that it is enough for an employee reasonably to believe that a criminal offence or legal obligation exists when making a "qualifying disclosure" under the whistleblowing legislation.

Under the whistleblowing provisions of the Employment Rights Act 1996, a qualifying disclosure is one which "in the reasonable belief of the person making the disclosure, tends to show", amongst other things, that a criminal offence has been committed or that a legal obligation has not been complied with.

In Kraus v. Penna, the Employment Appeals Tribunal held that, in a case where a whistleblower relies on a reasonable belief that the disclosure tends to show that a legal obligation has not been complied with, protection is lost if, as a matter of law, there is no legal obligation. The fact that the whistleblower reasonably believed the legal obligation existed did not matter.

The Court of Appeal has now overturned this point, stating that there is nothing in the whistleblowing provisions which requires the whistleblower to be correct in his reasonable belief that a criminal offence had been committed or that a legal obligation existed. Wall LJ stated that "the fact that (the whistleblower) may be wrong is not relevant, provided that his belief is reasonable and the disclosure to his employer is made in good faith".

This is clearly a sensible decision. As the Court of Appeal pointed out, there are sound policy reasons for this interpretation of the legislation as the purpose of the statute is to "encourage responsible whistleblowing". It would not be reasonable to expect every potential whistleblower to have a "detailed knowledge of the criminal law sufficient to enable them to determine whether or not the particular facts which they reasonably believe to be true are capable, as a matter of law, of constituting a particular criminal offence". The interpretation previously given had the potential to deter potential whistleblowers as they could lose protection from dismissal/detrimental treatment if it turned out that they were wrong to believe, however reasonably they held that belief, that a legal obligation existed or that a criminal offence had been committed.

From: Work Place Law