Darnton v. University of Surrey

Factual and Procedural Background

This appeal concerns the Applicant, referred to as Plaintiff, challenging a Decision of the Employment Tribunal at London South dated 27 June 2001. The Tribunal had determined that the Plaintiff had not made a protected disclosure under Part IV(A) of the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998. The Plaintiff was employed as a full-time lecturer at a University School of European Management (referred to as the Respondent) and had a contentious relationship with the Head of School, Professor X. The Plaintiff alleged harassment, intimidation, and academic malpractice relating to his employment and subsequent termination.

The Plaintiff's employment ended following a compromise agreement in August 1999, which included severance payments and an associate lecturership. After his departure, the Plaintiff wrote a letter dated 19 January 2000 to senior University officials, making various allegations against Professor X and the University’s management. The University terminated any further engagement with the Plaintiff in January 2000, leading to the Employment Tribunal proceedings.

The Employment Appeal Tribunal (EAT) heard a preliminary matter in November 2001, allowing the appeal to proceed to a full hearing with an amended Notice of Appeal. The central issue was whether the Plaintiff’s disclosures qualified for protection as whistleblowing under the statutory provisions.

Legal Issues Presented

1. Whether the Plaintiff’s disclosures constituted a "protected disclosure" within the meaning of Part IV(A) of the Employment Rights Act 1996.
2. Whether the Plaintiff held a reasonable belief that the information disclosed tended to show a relevant failure as defined by section 43B.
3. Whether the Plaintiff made the disclosures in good faith as required by section 43C.
4. The correct legal test for determining reasonable belief and the role of factual accuracy in that assessment.
5. Whether the Employment Tribunal applied the correct statutory test in its decision.

Arguments of the Parties

Appellant's Arguments

• The Employment Tribunal applied an incorrect test by focusing on the factual correctness of the allegations rather than on whether the Plaintiff reasonably believed the disclosures tended to show a relevant failure.
• The reasonable belief requirement under section 43B does not require the Plaintiff to believe the allegations were true, only that they tended to show a relevant failure.
• The Tribunal should have assessed the Plaintiff’s belief from his perspective, not based on findings of fact contrary to his belief.
• Good faith should be considered separately and only after establishing that the disclosure qualifies under the reasonable belief test.
• There was insufficient reasoning by the Tribunal on the issue of good faith, warranting a remittal to a differently constituted Tribunal.

Respondent's Arguments

• The reasonable belief requirement includes a need for the Plaintiff to hold a genuine and objectively reasonable belief that the information disclosed was credible and substantial.
• The Employment Tribunal was entitled to investigate the factual accuracy of the disclosures as part of assessing whether the Plaintiff held a reasonable belief and acted in good faith.
• The Tribunal’s findings that the Plaintiff did not reasonably believe his allegations tended to show a relevant failure justified its decision.
• Good faith was appropriately considered by the Tribunal, which found the Plaintiff lacked it, though the reasoning could have been clearer.
• Remitting the matter for a full rehearing was disproportionate; only specific inadequacies in reasoning should be addressed if necessary.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the statutory framework of Part IV(A) of the Employment Rights Act 1996, focusing on the definition of a protected disclosure and the requirement that the worker must hold a reasonable belief that the disclosure tends to show a relevant failure. The Court rejected both parties’ extreme positions: the Appellant’s view that reasonable belief does not require belief in the truth of the factual basis, and the Respondent’s view that the belief must be in the accuracy of the factual basis.

The Court held that the Employment Tribunal’s approach, which focused on whether the factual allegations were correct rather than on whether the Plaintiff reasonably believed the disclosures tended to show a relevant failure, was a departure from the statutory test. While determining factual accuracy can be a useful tool in assessing reasonable belief, the Tribunal must assess the belief from the worker’s perspective, considering both the belief in the facts and what those facts tend to show.

The Court also noted that the Employment Tribunal’s brief and unclear treatment of the good faith requirement was insufficient and lacked adequate reasoning. The Court found that the Tribunal did not clearly state why it rejected the Plaintiff’s good faith and that this failure justified a remittal.

The Court referred to authoritative commentary emphasizing that a worker’s reasonable belief need not be correct but must be based on some information tending to show the alleged malpractice, and that Employment Tribunals must avoid hindsight bias when assessing reasonableness.

Holding and Implications

The Court allowed the appeal in part and remitted the case to a differently constituted Employment Tribunal for reconsideration in accordance with the correct statutory test. Specifically, the Tribunal must:

• Assess whether the Plaintiff held a reasonable belief, from his perspective, that the disclosure tended to show a relevant failure.
• Provide clear and adequate reasoning on whether the Plaintiff made the disclosure in good faith.

The direct effect is that the original Employment Tribunal decision is set aside and the matter is sent back for rehearing. No new precedent was established beyond clarifying the correct application of the statutory test for reasonable belief and good faith under the Public Interest Disclosure Act provisions.