Montague vs The Board of Governors of St,The Council for Catholic
| Jurisdiction | Northern Ireland |
| Judgment Date | 26 July 2016 |
| Respondent | The Council for Catholic,The Board of Governors of St |
| Docket Number | 02326/15IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 2326/15
CLAIMANT: Amy Montague
RESPONDENT: 1. The Board of Governors of St Patrick’s Primary
School
2. The Council for Catholic Maintained Schools
DECISION
The unanimous decision of the tribunal is that all claims are dismissed
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mrs D Adams
Mrs F Cummins
Appearances:
The claimant was represented by Ms R Walsh, Barrister-at-Law, instructed by Murphys, Solicitors.
The respondents were represented by Mr M Wolfe, Queen’s Counsel instructed by Napier & Sons, Solicitors.
Background
1. The claimant had been employed by the first-named respondent as a temporary teacher, on both a fixed-term basis and on a daily basis, for various periods between 28 August 2012 and 22 August 2014. She was then employed from that latter date on a 12 month fixed term contract to 31 August 2015. Her employment ended on that date.
2. The first-named respondent is a small primary school which operates under the guidance of the second-named respondent.
3. The claimant had originally alleged unlawful age discrimination on various counts. Those claims of unlawful age discrimination were withdrawn by the claimant just before the hearing commenced.
4. Disregarding those initial claims of unlawful age discrimination, the claimant alleged:-
“(i) Unfair dismissal, contrary to the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’).
(ii) Public interest disclosure detriment (‘whistle blowing’), contrary to the 1996 Order.”
5. There was no claim of unlawful fixed-term worker discrimination, contrary to the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002.
Relevant law
6. The law in relation to protected disclosures is set out in the Employment Rights (Northern Ireland) 1996 (as amended). More popularly known as ‘whistle blowing’, protection against public interest disclosures is provided in certain circumstances where a disclosure is made by an employee on a matter within one of the public interest categories set out in Article 67B of the Order.
7. The meaning of a protected disclosure is set out in Article 67A which provides as follows:-
“67A In this Order a ‘protected disclosure’ means a qualifying disclosure (as defined by Article 67B) which is made by a worker in accordance with any of Article 67C to 67H.”
Disclosures Qualifying for Protection
“67B(1) In this Part, a “qualifying disclosure” means 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 preceding sub-paragraphs has been, is being or is likely to be deliberately concealed ...”
Disclosure to Employer or Other Responsible Person
“67C(1) A qualifying disclosure is made in accordance with this Article if the worker makes a disclosure in good faith –
(a) to his employer, or
(b) where the worker reasonably believes that the relevant failure relates solely or mainly to –
(i) the conduct of a person other than his employer or
(ii) any other matter for which a person other than his employer has legal responsibility, to that person”.
The claimant alleged that she had suffered detriments as a result of having made a protected disclosure and also that she was dismissed as a result of having made a protected disclosure. In relation to detriment, Article 70B(1) of the 1996 Order provides as follows:-
“A worker has a right not to be subjected to any detriment or any act or deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure.”
8. In relation to the right not to be dismissed for having made a protected disclosure, Article 134A of the 1996 Order provides that:-
“Article 134A
An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”
9. The first issue to consider is whether or not the disclosures made by the claimant qualify for protection under Article 67B and then whether or not there was a detriment to the claimant on the ground that the claimant had made the qualifying disclosure. The issue of whether the claimant was dismissed on grounds of having made a protected disclosure is considered below.
10. The legal test in relation to what amounts to a protected disclosure is set out in Easwaran v St Georges University of London [2010] UKEAT/0167/10 where Mr Justice Underhill set out a three step test for considering whether a qualifying disclosure had been made. This was as follows:-
“1. Did the worker disclose information?
2. If so, did the worker believe that the information tended to show at least one of the relevant failures?
3. If so, was the belief reasonable?”
11. In Cavendish Monroe Professional Risks Management Ltd v Geduld [2010] IRLR 38 EAT Mrs Justice Slade confirmed that:-
“The ordinary meaning of giving ‘information’ is conveying facts. In the course of the hearing before us, a hypothetic was advanced regarding communicating information about the state of the hospital. Communicating ‘information’ would be ‘The wards have not been cleaned for the last two weeks. Yesterday sharps were left lying around’. Contrasted with that would be a statement that, ‘You are not complying with health and safety requirements’. In our view this would be an allegation, not information.”
12. As regards the requirement of ‘reasonable belief’ on the part of the worker concerned, Lord Justice Wall confirmed in Babula v Waltham Forest College [2007] EWCA Civ 174 that the employee must subjectively hold the relevant belief, but the question of reasonableness is to be determined objectively in the context of the facts known to the worker at the relevant time. The burden is on the employee to establish a reasonable belief. The principles in relation to assessing reasonable belief were summarised in Babula and in Darnton v University of Surrey [2003] ICR 615.
They can be summarised as follows:-
(1) The tests involve both a subjective test of the worker’s belief and an objective test of whether the belief could reasonably have been held.
(2) The worker can be wrong yet still hold a reasonable belief (Darnton).
(3) The test of reasonable belief applies to all elements of the test of whether the information disclosed tends to show a relevant failure, including whether the relevant criminal offence or legal obligation in fact exists.
(4) Reasonableness of the belief is to be tested having regard not to only what was set out in the disclosure but also to the basis for that information and any allegation made (Darnton and Babula).
(5) What is reasonable depends on all the circumstances assessed from the perspective of the worker at the time of making the disclosure and it is for the tribunal to assess this. This may include consideration of the circumstances in which the disclosure was made, to whom the disclosure was made, the context and extent to which the worker claims to have direct knowledge of the matters disclosed and comparison with how the worker would be expected to behave if he...
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