Introduction

Goode v. Marks and Spencer Plc ([2010] UKEAT 0442_09_1504) is a pivotal case heard by the United Kingdom Employment Appeal Tribunal (EAT) on April 15, 2010. The appellant, Mr. Goode, a long-serving manager at Marks and Spencer (M&S), challenged the decisions of the Employment Tribunal which had dismissed his claims of making a protected disclosure and being unfairly and wrongfully dismissed. Central to this case is the interpretation of what constitutes a protected disclosure under the Employment Rights Act 1996, and whether Mr. Goode’s actions in communicating concerns to his employer and the press qualified for such protection.

Summary of the Judgment

The Employment Tribunal concluded that Mr. Goode did not make any protected disclosures either to his line manager, Mr. Raichura, or to the Times newspaper, and subsequently found that his dismissal was neither unfair nor wrongful. Mr. Goode appealed this decision, arguing that his disclosures were indeed protected and that his dismissal for making these disclosures constituted an automatically unfair dismissal under section 103A of the Employment Rights Act 1996.

Upon review, the EAT upheld the Tribunal’s decision, dismissing the appeal. The EAT affirmed that the disclosures made by Mr. Goode did not meet the criteria for protected disclosures as defined by the Act. Specifically, the Court found that the communications did not tend to show that M&S was failing to comply with any legal obligation, rendering them unprotected. Additionally, the EAT agreed that even if his disclosures to the Times had been qualifying, the prior lack of qualifying disclosure to his employer meant that section 43G(2)(c)(i) could not be satisfied, further negating protection under section 103A.

Analysis

Precedents Cited

The judgment references Cavendish Munro Professional Risk Management Ltd v Geduld [2010] ICR 325, where the distinction between conveying factual information and expressing opinions or allegations is emphasized. In Cavendish Munro, the EAT deliberated on what constitutes actionable information that could potentially breach legal obligations, underscoring the necessity for disclosures to demonstrate a tendency to reveal non-compliance with legal duties.

Furthermore, the case of GMB v Man Bus and Truck UK Ltd [2000] IRLR 636 was discussed to highlight the triggers for statutory consultation obligations under the Trade Union and Labour Relations Consolidation Act 1992, particularly in contexts involving mass redundancies. This precedent was pertinent in assessing whether M&S’s proposed redundancy changes necessitated broader consultation, though ultimately found not directly applicable due to the absence of specific redundancy plans in Mr. Goode’s disclosures.

Legal Reasoning

The core legal issue revolved around the interpretation of a "protected disclosure" under Part IVA of the Employment Rights Act 1996. To qualify, a disclosure must:

• Be a 'qualifying disclosure' as defined in section 43B, meaning it tends to show that a person has failed or is likely to fail in complying with a legal obligation.
• Be made in accordance with sections 43C to 43H.

Mr. Goode argued that his communications to Mr. Raichura and the Times disclosed legitimate concerns about changes to the redundancy terms, which could imply non-compliance with legal or contractual obligations. However, the Tribunal and EAT found that:

• His communication to Mr. Raichura was merely an expression of personal dissatisfaction (“disgusted”) without conveying actionable information.
• The e-mail to the Times lacked substantive information indicating M&S's failure to meet legal obligations, instead expressing opinions and fears about the impact of proposed changes.
• Even if the Times' disclosure had qualified, the lack of a qualifying disclosure to his employer negated the possibility of protection under section 43G.

The Court emphasized that simply expressing an opinion or dissatisfaction does not meet the threshold for a protected disclosure unless it conveys specific information indicative of legal non-compliance.

Impact

This judgment clarifies the stringent requirements for what constitutes a protected disclosure. It underscores that not all communications expressing dissatisfaction or concerns qualify for protection under the Employment Rights Act. For future cases, employers and employees must carefully assess whether disclosures contain substantive information that points to actual or potential legal breaches.

Moreover, the decision reinforces the necessity for employees to follow proper disclosure channels within the organization before seeking external avenues, as the lack of qualifying internal disclosures can nullify claims of protected disclosures made externally.

Complex Concepts Simplified

Protected Disclosure

A protected disclosure, often referred to as "whistleblowing," is when an employee reports wrongdoing or legal non-compliance within an organization. For the disclosure to be protected, it must be both qualifying and made through appropriate channels as defined by law.

Qualifying Disclosure

This refers to specific types of disclosures that tend to show that someone is failing to comply with legal obligations. Not every negative statement or complaint qualifies; it must have a connection to revealing non-compliance with the law.

Section 103A – Automatically Unfair Dismissal

This section protects employees from being dismissed if the principal reason for dismissal is that they made a protected disclosure. If dismissal is found to be primarily due to a qualifying disclosure, it is deemed automatically unfair, entitling the employee to remedies.

Section 43G – Making a Protected Disclosure to a Third Party

This section allows for protected disclosures to entities outside the employer, provided certain conditions are met, such as having made a qualifying disclosure to the employer first. Failure to satisfy these conditions can negate the protection.

Conclusion

The Goode v. Marks and Spencer Plc case serves as a crucial reference point in understanding the boundaries of protected disclosures within the UK employment law framework. It delineates the fine line between expressing personal dissatisfaction and making actionable disclosures that signal legal non-compliance. The EAT's dismissal of Mr. Goode's appeal reinforces the necessity for employees to ensure their disclosures meet the stringent criteria set out in the Employment Rights Act 1996. Employers, on the other hand, gain clarity on the thresholds required to deem a dismissal as automatically unfair under section 103A. Overall, the judgment emphasizes the importance of both the substance and the method of disclosure in whistleblowing cases.