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What does 'qualifying disclosure' mean in the context of whistleblowing legislation?
In this month’s ELA briefing, Sheryn Omeri (together with James Laddie QC of Matrix) considers the meaning of “qualifying disclosure” in the context of whistleblowing legislation.
Section 43B of the Employment Rights Act defines a qualifying disclosure as a disclosure of information which, in the reasonable belief of the worker making the disclosure, is in the public interest and tends to show at least one of six possible types of wrong. The case of Cavendish Munro Professional Risks Management Ltd v Geduld  ICR 325 was the first reported case to consider the meaning of “disclosure of information” in s.43B. In that case the EAT held that disclosing informing must import the conveying of facts.
In the more recent case of Norbrook Laboratories (GB) Ltd v Shaw  ICR 540, the EAT held that an earlier communication could be read together with a later one as being embedded in it, rendering the later disclosure a qualifying disclosure even if taken on their own neither would fall within s.43B.
In the most recent case to consider the meaning of the notion of a qualifying disclosure, Barton v Royal Borough of Greenwich UKEAT/0041/14/DXA (in which Sheryn acted for the successful Respondent), the EAT (HHJ Serota QC) held that “The claimant cannot create a protected disclosure by aggregation of the email…and the telephone conversation…neither of which were established as protected disclosures. Each disclosure must be considered separately…” This was in direct conflict with the ratio of Norbrook (which was not cited before HHJ Serota QC) but in line with Geduld and Bolton School v Evans  ICR 641. In view of this, query whether the Norbrook concept of “embedded communications” will withstand future scrutiny.
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