Beating around the bush – disclosure did not have to identify legal obligation
To be protected as a whistleblower an employee has to disclose information to his employer – or someone else recognised by the legislation – that tends to show one of a range of matters, including failure to comply with a legal obligation and health and safety failings. The issue for the EAT in Twist DX Ltd v Armes was whether employees have to spell out the particular legal obligations they have in mind. The EAT found that they do not.
Mr Armes was a research scientist. He said that he had raised concerns in a number of emails about the accuracy of a diagnostic tool produced by the employer that was used in a wide range of clinical and healthcare settings. After he was dismissed he claimed that he was a whistleblower and that his dismissal was automatically unfair.
The employer applied for the claims to be struck out because they had no reasonable prospect of success. It argued that the employee would not be able to show that he had made a qualifying disclosure because the emails did not identify the legal obligation he said the company had breached. The tribunal refused the application and the employer appealed to the EAT.
Although the employer accepted that the employee had raised concerns about contamination, the emails the employee said were disclosures did not refer specifically to health and safety or to any criminal offences but made more general statements about the need to develop new devices and to plan for “black swan” events. Only one email referred to the possibility of “regulatory risk” and the employer said that was not enough to show that one of the relevant matters was engaged.
The EAT rejected that argument. There are three broad questions for a tribunal to consider:
- What information has been disclosed;
- What the worker believes that information tends to show; and
- Whether that belief is reasonable.
The information must have sufficient factual content and be sufficiently specific but it does not have to accuse an employer of acting unlawfully or criminally expressly, nor does it have to be obvious that this is what the employee is alleging. Evidentially it may be easier for an employee to show that they have made a protected disclosure if they have specifically complained about criminality or illegality or health and safety but there is no requirement to do so.
Tribunals could be relied upon to be able to separate genuine public interest disclosure cases from claims that are constructed. On the facts of the case it was at least arguable that the email referring to potential regulatory concerns was capable of being a protected disclosure and the tribunal was correct not to strike out the claim in its entirety.
Gone fishing – disclosure in equal pay claims
Around 9,000 store-based supermarket workers have brought equal pay claims against Tesco Stores Ltd, relying on male comparators in distribution centres. However, those comparators have been identified on a generic basis, not as named individuals. The claimants applied for and were granted disclosure orders requiring Tesco to provide information about the pay and contracts of all hourly paid roles within distribution centres. Tesco appealed to the EAT, arguing that the claimants had not made a prima facie case against Tesco and that the applications were “fishing expeditions” designed to allow the claimants to formulate a claim that they had not yet brought.
The EAT rejected Tesco’s appeal. Tribunals can order disclosure where it is necessary for the fair disposal of proceedings. In the context of large scale equal pay claims, claimants often have limited information about potential comparators. That does not mean that tribunals dismiss claims for want of particularity but rather that they exercise their case management powers to order disclosure that may enable claimants to identify a more focused group of comparators.
A “fishing expedition” is one in which a claimant requests disclosure in order to find a claim, instead of to inform a claim that has already been made. An equal pay claim was already in existence that pleaded a breach of the equal pay for work of equal value provisions by reference to male comparators. The claimants were asking for disclosure to narrow and particularise that claim, not in order to find a claim.
If the claimants needed to show a prima facie case before a tribunal could order disclosure, that meant no more than showing a claim with a reasonable prospect of success. There was no higher evidential threshold. The tribunal had applied the correct test and its conclusion was unassailable. The essential ingredients of an equal pay claim were present and there was some reasonable basis for asserting a difference in pay. Given the difficulties in acquiring comparator information it was difficult to see what else the claimants could say in their pleaded case and the disclosure request was not a fishing expedition.
All change – tribunal limits and pay gap reporting
The government has laid the Employment Rights (Increase in Limits) Order 2021 before Parliament. The Order contains the annual increase in compensation limits in employment related tribunal claims.
For dismissals taking place on or after 6 April 2021 a week’s pay increases to £544, while the maximum compensatory award rises to £89,493. Guarantee payments remain unchanged at £30/ day.
Recognising the continuing effects of the Covid-19 pandemic, the EHRC has confirmed that while private sector employers will be required to report their gender pay gaps for 2020/21, in contrast to the position last year where reporting requirements were suspended, there will be a six month grace period before it takes enforcement action. The EHRC will not take enforcement action against employers who publish their gender pay gap before 5 October 2021. However, employers are still encouraged to publish the required information by 4 April 2021 if they are able to do so.