REASONING WITH BELIEF: Reflecting upon the recent approach to ‘reasonable belief’ in whistleblowing cases
7 November 2022

REASONING WITH BELIEF: Reflecting upon the recent approach to ‘reasonable belief’ in whistleblowing cases

Author: Robert Allen

It is well established that a whistleblowing claim may only succeed if the whistleblower makes a ‘qualifying disclosure’.  A claimant must satisfy the tribunal that they reasonably believed their disclosure (i) tended to show a breach of a legal obligation and (ii) was made in the public interest.[1]

Whilst many whistleblowing cases turn on the causation of any alleged detriment, making out such a protected disclosure can, in and of itself, present several issues for claimants.  In the recent case of Martin v. London Borough of Southwark and Ors[2], the Employment Appeal Tribunal (EAT) examined one such issue: that of reasonable belief.

The doctrine of reasonable belief in a whistleblowing context was explored some 15 years ago by Wall LJ in Babula v. Waltham Forest College[3]:

‘[I]n my judgment, the word ‘belief’ in section 43B(1) is plainly subjective.  It is the particular belief held by the particular worker.  Equally, however, the ‘belief’ must be ‘reasonable’.  That is an objective test.’

Subjective belief and objective reasonableness are not mutually exclusive.  Wall LJ opined that it was ‘[the claimant’s] belief (which is inevitably subjective) [that must be] held by the Tribunal to be objectively reasonable.[4]

So, the test is twofold.  First, whether a claimant held a subjective belief.  Second, whether that subjective belief, given the facts known to that claimant, was reasonable by an objective standard.

Such an approach has been adopted throughout English law.  Most recently in the now standardised dishonesty test, reformulated by the Supreme Court in Ivey v. Genting Casinos Ltd t/a Crockfords.[5]  Following Ivey, the court is asked first to enquire as to the subjective state of a person’s honesty, before considering whether that same state of mind was objectively honest.  Indeed, a similar model has also been applied within the criminal courts in the context of self-defence.[6]

The two-stage test requires a level of nuance.  And for good reason.  Applying an objective standard alone fails to take into account the state of the claimant’s own mind at the time the disclosure was made.  The tribunal can only fairly assess whether a given belief was reasonable by stepping into the shoes of the claimant, so that their words and actions during the making of the disclosure can be properly reconciled.

In Martin, the EAT had cause to re-emphasise the consequences of this approach.  

Mr Martin, in his capacity as a teacher at a hospital school, grew concerned that he and his fellow staff were being required to work hours in excess of Directed Time[7].  Martin disclosed the same to the head teacher by email:[8]

I am looking at our working hours for teachers and seem unable to reconcile them to statutory guidance, and all my conservative calculations, clearly I may be missing something’, Martin wrote.  He went on: ‘From my calculations the excess of directed time for each full-time teacher is in excess of 97.5 hours for this academic year 05/09/16-21/07/17, clearly I may be missing something. Please may we discuss this?

The issue was whether Martin reasonably believed he had disclosed information tending to show a breach of the legal obligation to follow the School Teachers’ Pay and Conditions Document.

It is fair to say Martin adopted tentative, even provisional, wording.  But was it fair, as the Employment Tribunal (ET) found at first instance[9], to say that Martin’s words amounted to an ‘enquiry rather than a disclosure of information’?  The ET’s view was that ‘[it was] clear from the wording that the purpose of the letter [was] to invite a discussion’ and that he was ‘not alleging that there was a breach of a legal requirement.’

On appeal, Tayler J held that the ET had erred in its approach.  It had not applied the two-stages as referenced in Babula.  The ET had taken Martin’s caution, by objective assessment, as an indication that he lacked the requisite certainty that Directed Time had been exceeded.  The ET had approached the question of reasonable belief on a purely objective basis:

The tribunal did not consider what the claimant’s subjective belief was or whether that belief was objectively reasonable.[10]

It is, of course, unsurprising that Martin was cautious when flagging the issue.  Most employees do not operate under a universal assumption that their employer is acting in breach of a statutory obligation.  Discovery of such a breach may come as a surprise, often triggering self-doubt.  A whistleblower’s words should be seen in this context; that requires a degree of subjectivity.

It is also plain from Martin’s email that he had taken it upon himself to research the nature of the breach.  He had conducted the necessary calculations and understood the lawful position.  In other words, he came armed with information which tended to show the breach and disclosed that information to his employer.  That he may have invited his employer to refute that same information did not undo his first act.

Yet, applying a blanket objective approach, the ET took Martin’s words ‘clearly, I may be missing something. Please may we discuss this?’ in their ordinary meaning, and out of the context originally intended by Martin himself.

Reasonable belief demands objective rationality, but the EAT’s decision in Martin is a worthy reminder that the facts known to, and particular beliefs of, the whistleblower in question must not be ignored.

Robert Allen commenced pupillage in October 2022 under the supervision of Claire Millns.  Robert will be ready to take instructions from April 2023.

[1] Section 43B Employment Rights Act 1996

[2] EA-2020-000432-JOJ

[3] [2007] EWCA Civ 174 at [82]

[4] [75] ibid

[5] [2017] UKSC 67

[6] R v. Gladstone Williams [1987] 3 All ER 411

[7] Directed time is when teachers are directed by their head teacher to be at work and available for work. The vast majority of publicly funded schools in England operate according to the School Teachers’ Pay and Conditions Document (STPCD), which states that a classroom teacher can only be directed by the headteacher to work for up to a maximum of 1,265 hours over 195 days of the year.

[8] [16] of Martin

[9] [20] ibid

[10] [18] ibid