Trappist orders: two tribunal decisions concerning the definition of a 'protected disclosure' have made life more difficult for those contemplating such an act in the public interest.
| Author | Nickson, Sue |
| Position | Legal |
The Public Interest Disclosure Act 1998 (Pida) amends the Employment Rights Act 1996 to safeguard a worker from dismissal if he makes a "protected disclosure". This must be made in good faith and concern information that in his reasonable belief shows a "relevant failure" eg, an actual or likely breach of a legal obligation.
Pida was enacted alter the sinking of the Herald of Free Enterprise and the Clapham Junction rail crash. It emerged in inquiries alter these events that employees had known of the risk that such disasters could occur but had not spoken up for fear of detrimental treatment by their employers. The act is therefore laudable, but two recent cases have raised questions about whether tribunals have raised the bar of what constitutes a protected disclosure so high as to deter whistle-blowing.
In Kraus v Penna plc, Penna engaged Kraus to provide services to one of its clients during a reorganisation. He became concerned that one of the client's directors was planning to cut more jobs than necessary to achieve its financial targets. He warned the director that this could be unlawful, as some of the cuts would be for reasons other than redundancy, so exposing the client to possible unfair dismissal claims. Kraus was then informed that the client no longer required his services and Penna terminated his contract. He claimed that he had suffered a detriment on account of a protected disclosure. An employment tribunal struck this out on the grounds that be had failed to show that the client was under a legal obligation regarding the proposed redundancies or that it was likely to be in breach of this.
When Kraus appealed, the EAT concluded that his view that Penna's client "could" breach employment law if it made the proposed job cuts was insufficient. The wording "likely to fail to comply with a legal obligation" in the act should be interpreted as at least probable, rather than merely possible. Kraus had not shown that it was probable, according to the EAT, which also found that his view that the client was under such an obligation was irrelevant the--issue of reasonableness of belief related to a breach and not to the existence of the obligation itself.
In the...
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