Thread by @JasonBraier

1/ Martin v LB Southwark: EAT warns of the dangers of an ET failing to take a structured approach to assessing whether a disclosure is a qualifying disclosure. The ET reviewed 5 disclosures, & was fundamentally flawed in reviewing each one.

bailii.org/uk/cases/UKEAT…

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2/ M was a teacher. He was concerned that he and other teachers worked over & above the 'statutory directed time'. He set out those concerns on a number of occasions. The ET found none of them to be qualifying disclosures, but the EAT remitted the question to a new panel.

3/ The 1st disclosure was in an email to the Head, raising concern that teachers' working hours exceeded 'statutory guidance'. The ET found that as it merely raised a 'potential concern' it was an enquiry rather than disclosure of information.

4/ The EAT made clear that putting something in tentative terms didn't mean M couldn't have reasonably believed the info tended to show a breach of legal obligation. HJ Tayler criticised the lack of structure in the analysis & failure to apply the correct reasonable belief test.

5/ That test looks subjectively at whether a claimant actually believes a legal obligation has, is or might be breached, before subjecting that to an objective reasonableness analysis. Moreover, Linden J in Twixt v Armes made clear there's no need to identify the legal obligation

6/ The 2nd disclosure also raised express concerns about teachers working longer than 'statutory directed time' as well as the headteacher's failure to comply with the School Teachers' Pay & Conditions document. The ET again found this to be merely a query over data.

7/ The EAT criticised the ET for failing to consider 1st whether there had been a disclosure of information (in line with Kilraine), 2nd the question of belief it tended to show breach of obligation & 3rd the public interest question in line with Chesterton.

8/ The 3rd disclosure was an email to governors due to discuss M's 'directed time' concerns, with M writing of hope that the governors would do the right thing to ensure compliance with statutory guidance going forwards. The ET's dismissal of this disclosure was very short indeed

9/ The EAT noted that even in that short reasoning the ET had erred in only considering its own subjective view of the public interest & not M's subjective view nor whether that was objectively reasonable. Chesterton was once again overlooked.

10/ The 4th disclosure was to the local authority & again referenced M working above the statutory limit. Here the ET considered the disclosure to focus on M himself & his personal wage situation & thus not to be in the public interest.

11/ The EAT criticised the ET for noting that the disclosure was made also in respect of other teachers' hours but then focusing on M's motive for making the disclosure rather than the 3 issues set out in tweet 7, noting that a personal motive doesn't preclude public interest.

12/ Finally, the 5th disclosure was M informing the local authority & school that he'd engaged with ACAS to resolve the issues, which he then set out briefly. The ET found it not in the public interest without once again applying Chesterton.

13/ The EAT also noted as an additional overall error that the ET appeared to consider something didn't count as a disclosure if the information was already before the respondent. The EAT said that disregards s.43H ERA, but I wonder if that should read s.43L(3).

14/ Ultimately, the EAT was concerned the ET failed to take a structured approach to determining whether there were qualifying disclosures & that numerous errorsin reasoning followed. As HHJ Tayler pointed out, the structured approach is clear from Williams v Michelle Brown.

15/ Those manifest failures led to the case being remitted to a differently constituted ET & to yet another glorious win for my pre-pandemic roommate, @RadBarrister

#ukemplaw