Ibrahim v HCA International Ltd

Factual and Procedural Background

The Appellant, a fluent Arabic speaker, worked as an interpreter for the Respondent from approximately 2008 until 6 October 2016. On 24 January 2017, the Appellant issued claims in the employment tribunal (ET) including unfair dismissal, wrongful dismissal, arrears of wages, sex discrimination, and detriment on the grounds of public interest disclosures (whistleblowing) made in March 2016.

A preliminary hearing took place on 14 and 15 June 2017 before Employment Judge Ayre, who heard the case sitting alone. The Appellant was assisted pro bono by counsel during part of the hearing. The ET rejected all claims. The ET found the Appellant was not an employee of the Respondent, striking out the wage arrears claims and refusing to extend time for the sex discrimination claim.

The appeal focused solely on the whistleblowing claim. The whistleblowing issues concerned whether the Appellant had made qualifying disclosures under section 43B of the Employment Rights Act 1996, specifically alleging breaches of patient confidentiality and unprofessional conduct by a manager, and whether those disclosures were made in the public interest.

The Appellant sought to clear his name from rumours accusing him of breaching patient confidentiality and complained about his treatment by a line manager. An internal investigation was conducted but the complaint was not upheld.

The ET concluded that the Appellant’s complaints about false rumours did not amount to a qualifying disclosure and that the disclosures were not made in the public interest but rather to clear the Appellant’s name. The Appellant appealed to the Employment Appeal Tribunal (EAT), which allowed the appeal to proceed to a full hearing on amended grounds alleging errors of law regarding the interpretation of qualifying disclosures and the public interest test.

The EAT upheld the inclusion of defamation within the scope of qualifying disclosures but found the Appellant did not have a subjective belief that his disclosure was in the public interest. The Appellant then sought permission to appeal to this court, which was granted on a ground relating to whether the ET had properly addressed the Appellant's subjective belief and the reasonableness of that belief.

The court considered whether the ET had adequately asked the Appellant about his belief that the disclosures were in the public interest and found that it had not. The court decided to remit the matter to the ET for a further hearing on this issue.

Legal Issues Presented

1. Whether the Appellant’s disclosures constituted qualifying disclosures under section 43B of the Employment Rights Act 1996, specifically whether an allegation of defamation by an employer or fellow employee falls within the scope of "failed to comply with a legal obligation".
2. Whether the Employment Tribunal properly considered the two-stage public interest test established in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2017] EWCA Civ 979, namely (a) whether the worker believed the disclosure was in the public interest, and (b) whether that belief was reasonable.
3. Whether the Employment Tribunal erred in conflating the Appellant’s motive for making the disclosure with his subjective belief that the disclosure was in the public interest.
4. Whether the case should be remitted to the Employment Tribunal for further consideration of the Appellant’s subjective belief and the reasonableness of that belief.

Arguments of the Parties

Appellant's Arguments

• A tribunal should not focus on motive when assessing subjective belief; a worker can believe a disclosure is in the public interest without being motivated by that belief.
• A tribunal should adopt a flexible approach to the worker’s subjective belief, recognizing that a belief serving a "wider interest" suffices as being "in the public interest".
• A tribunal should consider the circumstances and context of the disclosure, including any requests for investigation, when assessing the worker’s subjective belief.

Respondent's Arguments

• The disclosures concerned allegations of defamation via false rumours about a breach of patient confidentiality, not an actual breach, and the Appellant did not express belief that such a breach had occurred.
• The Employment Tribunal’s factual findings that the Appellant’s subjective belief was only to clear his name and restore his reputation were entitled to deference.
• Although the ET sometimes conflated motive and belief, this was not an error of law as the correct test was set out and the reasons should be read as a whole.
• If any gap in reasoning existed, the preferred procedure would be to remit the case to the ET rather than seek amplification of reasons.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the Employment Tribunal’s findings and the application of the legal test under section 43B of the Employment Rights Act 1996 as clarified by the Court of Appeal in Chesterton. The key issue was whether the ET had properly addressed the Appellant’s subjective belief that his disclosures were made in the public interest and whether that belief was reasonable.

The court noted that the ET had found the disclosures were not made in the public interest but rather to clear the Appellant’s name, focusing on motive rather than subjective belief. The court found that the ET had not directly asked the Appellant whether he believed he was acting in the public interest at the time of disclosure, nor had it made explicit findings on this point.

While the ET’s factual findings about the Appellant’s concerns being personal were accepted, the court identified a gap in the ET’s reasoning on the subjective belief element. The court acknowledged the Respondent’s submissions that the ET’s reasons should be read as a whole and that some elision of the two-stage test occurred, but concluded that the deficiency was not remedied.

The court rejected the suggestion to seek amplification of the ET’s reasons under the Burns/Barke procedure, as the issue was not adequately covered in evidence. Instead, the court decided that the appropriate course was to remit the case to the ET for a further hearing focused on the subjective belief and its reasonableness, allowing the Appellant to give further evidence if necessary.

The court also considered whether the case should be remitted to a different Employment Judge but concluded that the professionalism of the original judge and considerations of proportionality and efficiency supported remission to the same judge.

Holding and Implications

The court ALLOWED THE APPEAL and ordered that the whistleblowing claim be remitted to the Employment Tribunal for a preliminary hearing, if possible before Employment Judge Ayre, to determine:

• Whether the Appellant had a subjective belief that the alleged protected disclosures were made in the public interest; and
• If so, whether such belief was reasonable.

The Appellant is permitted to give further evidence at this hearing. The factual findings already made by the ET regarding the events of March 2016 are to be treated as binding.

The Respondent was ordered to pay costs to the Appellant, including sums for litigant in person costs, disbursements, and pro bono representation costs.

The decision does not establish new legal precedent but clarifies the necessity for Employment Tribunals to explicitly address the subjective belief element in whistleblowing claims in accordance with the Chesterton framework. It reinforces procedural fairness by ensuring claimants have the opportunity to present evidence on this critical issue.