The recent case of Easwaran v St George’s University of London is a useful reminder of the key constituent parts of a public interest disclosure claim (or “whistleblowing” as it is more commonly called).
Dr Easwaran was a medical demonstrator at St George’s Hospital Medical School. He worked mainly in the hospital’s dissecting room where he prepared cadavers for teaching purposes and assisted in demonstrations for students studying anatomy. During the winter of 2007 to 2008 there was a problem with the dissecting room’s air conditioning that meant that the room was very cold. It also meant that there was a risk that fumes from the formalin used to preserve the cadavers might build up. The technician with responsibility for the physical conditions of the room addressed that risk by opening the windows from time to time.
Dr Easwaran asked the technician to close the windows because he felt the dissecting room was too cold. The technician refused because of the risk of formalin fumes, which led to a heated argument between the two of them. Following this argument, Dr Easwaran wrote to the doctor with ultimate managerial responsibility for academic staff on 5 November 2007 describing his concern about the temperature and his argument with the technician. In that letter, Dr Easwaran stated, “I said it was basic health and safety as we do stay for hours inside the DR that might affect my health adversely (Eg: Pnumonia [sic] etc).”
Dr Easwaran’s employment tribunal claim was based on the assertion that his letter of 5 November was a qualifying disclosure because it showed that he believed that “the health and safety of any individual has been, is being or is likely to be endangered” (section 43B Employment Rights Act 1996) and that he suffered a detriment as the result of having made that disclosure. During the hearing of his claim he confirmed that his primary concern was that he might contract pneumonia as the result of the cold conditions. The Employment Tribunal found as a matter of fact that pneumonia is not a condition caused by working in cold temperatures. It refused to uphold Dr Easwaran’s claim and he appealed to the Employment Appeal Tribunal (“the EAT”).
The EAT criticized the original Tribunal’s judgement for not sufficiently distinguishing the separate elements of a whistleblowing claim. As applied to Dr Easwaran’s claim these were:
1. Did Dr Easwaran disclose any information in his letter of 5 November (ie was there a “disclosure” to his employer)?
2. If so, did he believe that the information tended to show that the health and safety of any individual had been, was being or was likely to be endangered?
3. If so, was that belief reasonable?
The original Tribunal had decided that Dr Easwaran’s assertion that he was at risk of contracting pneumonia was an “unsupported allegation” that constituted “a mere expression of opinion” and that he had not therefore met the requirements of section 43B. The EAT said that the Tribunal had not sufficiently distinguished the constituent elements of the claim but it refused to overturn the original decision on the basis that the Tribunal had addressed the right questions “albeit not in the most systematic way”. The EAT held that Dr Easwaran had made a disclosure and did genuinely believe that there was a risk to health and safety (so parts 1 and 2 were satisfied). However, it said that the original Tribunal was entitled to take into account the fact that there was no risk that Dr Easwaran might get pneumonia because of the cold conditions in deciding that his belief was not reasonable. The EAT reminded itself that just because a belief turns out to be factually wrong it need not necessarily be unreasonable but decided in this case that the Tribunal was entitled to find that Dr Easwaran’s anger from his argument with the technician led him to taking an extreme and unjustified position about the risk of pneumonia. The claim therefore failed.
The 3 elements set out above are required to succeed in any whistleblowing claim (althoughthe ERA 1996 also sets out 5 potential grounds in addition to risks to health and safety ). The other key element, which the EAT did not need to address in this case, is the existence of either a dismissal or some other detriment to the employee by the employer that results wholly or mainly from the protected disclosure that the employee has made. It is worth bearing in mind, therefore, that an employee can make a perfectly valid protected disclosure but, if dismissed for an equally valid fair reason that is not connected with that disclosure, still not have any whistleblowing claim.