Street v Derbyshire Unemployed Workers' Centre

The appellant, Mrs Frances Muriel Street, appeals from a decision of the Employment Appeal Tribunal affirming the determination of the Sheffield Employment Tribunal turning on the meaning of the requirement of “good faith” in making disclosures in the public interest that are “qualifying” disclosures under section 43B of the Employment Rights Act 1996 (“the 1996 Act”), and, therefore, “protected” disclosures under sections 43A and 43C to 43H of the Act.

Dismissal of a worker on account, or principally on account, of him having made such a protected disclosure is, by section 103A of the 1996 Act, deemed to have been an unfair dismissal for the purposes of that Act. Those provisions were inserted in a new Part, Part IVA, of the Act by section 1 of the Public Interest Disclosure Act 1998, the purpose of which is clearly stated in its long title:

“An Act to protect individuals who make certain disclosures of information in the public interest; to allow such individuals to bring action in respect of victimisation; and for connected purposes.”

They relate to “any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show” among other things the commission or likely commission of a criminal offence or a failure or likely failure by a person to comply with any legal obligation to which he is subject (Section 43A and 43B(1) (a) and (b)).

Section 103A of the 1996 Act provides in effect for an ”automatic” entitlement to be regarded as unfairly dismissed for the purpose of the Act if the reason, or if there is more than one, the principal reason, for the dismissal is that he made what the Act defines, in section 43A, as a “protected disclosure”, that is, one of various sorts so specified in section 43B, the degree of protection qualifying for the purpose varying according to different circumstances specified in sections 43C to 43H. It should be noted that if a disclosure does not qualify for protection, that is, an automatic entitlement to be regarded as unfairly dismissed, the worker is still entitled to pursue his claim for unfair dismissal before an Employment Tribunal under Chapter 2 of Part X of the 1996 Act in the ordinary way.

In this case Mrs Street, who had worked as an administrator for the Derbyshire Unemployed Workers Centre (“the Centre”) from 1989, was dismissed by the Centre in January 2001 after making a series of allegations against the manager of the Centre. She made a claim to an Employment Tribunal maintaining that she was entitled to be regarded as unlawfully dismissed under section 103A. The Tribunal dismissed her claim, holding that, in making the disclosure, she had lacked the good faith required under section 43C(1) or 43G(1)(a). The Employment Appeal Tribunal upheld that ruling and remitted the case back to the same Employment Tribunal for it to consider a claim of “ordinary” unfair dismissal.

The scheme of the “whistle-blowing” provisions in the 1996 Act is to encourage and protect employees to, and who, report concerns about malpractice in the work-place and elsewhere. The Act provides a three tiered disclosure regime under which, if the “whistleblower” is to secure the automatic protection of section 103A, his responsibility for justifying his disclosure is set progressively higher according to the distance of the person to whom he makes it from the main subject or object of his complaint. In all of them, save for section 43D – disclosure to legal adviser - the minimum requirement for protection is that the disclosure is made “in good faith”.

Thus, in section 43C, all that a worker who makes a disclosure to his employer or to another responsible person, or under section 43E – disclosure to a Minister of the Crown - has to do to qualify to for automatic protection is to show that his disclosure was made “in good faith”. One of the disclosures under consideration in this case was made to a member of the Centre’s Management Committee, and was thus a candidate for protection under section 43C.

The second tier of disclosure, in which greater justification is required for protection, is that provided by section 43F - disclosure to a prescribed person – where, in addition to showing that the disclosure was made “in good faith”, the worker must show that he reasonably believed that the malpractice of which he complained falls within the description of the matters in respect of which that person is prescribed and that his complaint is “substantially true”. None of Mrs Street’s disclosures under consideration in this case falls within this category.

The third tier of protection, with which this appeal is mainly concerned, is that provided for in section 43G – “Disclosure in other cases” - where the “whistleblower” has to do much more to justify his automatic protection. (Footnote: ¹) In addition to showing that he made the disclosure “in good faith” under section 43G(1)(a), he must show that it was made:

It is plain from that summary of the relevant provisions that; 1) the conditions in section 43G(1) are cumulative, that is, that a disclosure is only a “qualifying disclosure” if all of them are met; 2) the conditions in section 43G(2) are disjunctive, that is, it is sufficient if any one of them is met; 3) there is some overlap between them all; and 4) in making separate and cumulative provision in section 43G(1) for “good faith” in (a), reasonable belief in the truth of the disclosure in (b) and reasonableness of the disclosure in all the circumstance in (e), the draftsman has allowed for circumstances in which the disclosure, though made with reasonable belief in its truth, would not qualify for protection because it was not made in good faith and/or reasonably.

Looking at the provisions overall, Mummery LJ has given the following useful narrative account of their requirements in paragraph 4 of his judgment in ALM Medical Services v Bladon [2002] EWCA Civ 1085, with which Sir Andrew Morritt V-C and Rix LJ agreed:

“The provisions can only be invoked if the relevant disclosure satisfies certain requirements. In outline they are as follows: i) A disclosure of information only qualifies for protection if, in the reasonable belief of the worker making the disclosure, it tends to show one or more things specified in section 43B(a) to (f); for example, that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject; or that the health or safety of any individual has been, is being or is likely to be endangered. ii) The disclosure must be made in accordance with the provisions of ss 43C to 43H: for example, the worker must make the disclosure in good faith to his employer (s 43C). iii) Disclosure by a worker ‘in other cases’ may be also protected under s 43G, if certain cumulative requirements are met: it must be made in good faith, he must reasonably believe that the information disclosed, and any allegation contained in it, are substantially true, he must not make the disclosure for the purposes of personal gain. iv) In such ‘other cases’ one or more of the conditions set out in section 43G(2) must also be met. They require that at the time he makes a disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or that he reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or that the worker has previously made a disclosure of substantially the same information to the employer. v) There is also a requirement that, in all the circumstances of the case, it is reasonable for the worker to make the disclosure. Section 43G(3) sets out the factors to which regard must be had, in particular, in determining whether it is reasonable for the worker to make the disclosure: e.g. the identity of the person to whom disclosure is made, the seriousness of the relevant failure, whether the relevant failure is continuing or is likely to occur in the future and any action which the employer, to whom previous disclosure was made, has taken or might reasonably be expected to have taken as a result of the previous disclosure.”

Mrs Street began employment with the Centre in May 1989 and was dismissed on 30 January 2001. She was initially employed as a part-time administrative assistant, and from 1993 onwards as a full-time administration worker. The Centre is a voluntary non-profit-making organisation providing advice and assistance to unemployed, unpaid or low-paid people in North East Derbyshire.

The management of the Centre is conducted by a Management Committee made up of persons, not employed by it, but who are elected or co-opted onto the Committee by the various bodies that fund it. Those include the Chesterfield Borough Council (“the Borough Council”) and the North East Derbyshire District Council (“the District Council”). At all relevant times, the co-ordinator (effectively the manager) of the Centre was Mr Colin Hampton. His assistant was a Mr Pemberton, and there were five other paid staff, including Mrs Street.

On 22nd May 2000 Mrs Street wrote to the Treasurer of the Borough Council, a Mr Richard Earlam, making various allegations against Mr Hampton, a disclosure within section 43G. She headed her letter “Private and Confidential under Whistle Blowers Legislation”, and alleged that:

Mr Earlam responded by letter of 25 May 2000. He stated that it would be difficult for the Borough Council to investigate the allegations because it did not have powers of entry or inspection of documents. He suggested that her letter could be shown to the Chairman of the Centre’s Management Committee, Councillor Kendellen, or that he, Mr Earlam, could raise the issues with Councillor Kendellen on a non-attributable basis.

Mrs Street, in her reply of 19 June 2000, rejected his suggestions, stating that she had no confidence in the Centre’s Management Committee. She also referred to Mr Hampton’s recent barring of District Councillor Patricia Williams from meetings of the Centre’s Management Committee (but of which she remained a member), for having allegedly breached the Centre’s equal opportunities policy and also complained that he had used an item of correspondence against another employee, Mr Derek Skinner, in breach of the Data Protection Act 1998. Mr Earlam’s response was to suggest that they should meet, but she declined to do so.

In the latter part of June 2001, Mrs Street showed Councillor Williams copies of the two letters she had written to Mr Earlam, a disclosure falling within section 43C of the 1996 Act as Councillor Williams had been a member of the Centre’s Management Committee. She also showed Councillor Williams a copy of what purported to be a report of the Centre’s staff meeting of 9 June 2000. That report recorded an incident during the meeting when a volunteer, Sarah Roy, had behaved in a way demonstrating disrespect towards persons with learning disabilities. In her note Mrs Street commented that she found it strange that Mr Hampton had not remonstrated with Ms Roy over the incident, and contrasted his treatment of Councillor Williams in barring her from the Centre for alleged comparable conduct, namely her harassment of a Mr Skinner’s estranged partner (a matter to which the Employment Tribunal was to make express reference in its extended reasons for its determination).

At a meeting of the Centre’s Management Committee on 11th October 2000, the Vice-Chairman, Mr Johnson, reported the allegations of impropriety against Mr Hampton. The Committee resolved on an investigation to be carried out by an independent person, namely, Mr John Burrows, a Councillor of the Borough Council and Chairman of its Standards Committee. The Centre then invited Mr Burrows to conduct the investigation, but did not do so in writing and gave him no specific terms of reference.

Mr Burrows investigated three separate issues, the first two arising out of Mrs Street’s section 43G disclosures to Mr Earlam, namely the alleged use by Mr Hampton of work-time for the Centre when abroad and the issue of the Centre’s staff being used for non-Centre work, and the third, Mrs Street’s section 43C disclosure to Councillor Williams, in her suggestion of his double standards in his implementation of the Centre’s Equal Opportunities Policy. The Centre did not instruct Mr Burrows in relation to the allegation of fraud - apparently that was considered to be a matter for the TUC.

Mrs Street declined Mr Burrows’ request to interview her for the purpose of his investigation. His report exonerated Mr Hampton and was critical of her for failing to co-operate with the investigation her allegations had prompted. He described her as being at best misguided and at worst malicious. He stated that the allegations were unfounded and possibly required serious disciplinary proceedings to be taken against her.

Mr Burrow’s report was presented to the Centre’s Management Committee at a meeting on 18 December 2000, at which the Committee seemingly concluded that Mrs Street’s allegations against Mr Hampton were unfounded. By letter of the same date, the Centre’s Committee’s Assistant Co-ordinator, a Mr Pemberton, wrote to her suspending her from work pending an investigation of the “serious matters” to which Mr Burrows had referred. In a subsequent letter, Mr Pemberton invited her to a “fact-finding” interview on 11 January 2001. She attended the interview with her union representative and gave an explanation for her disclosures to Mr Earlam and Councillor Williams and for her refusal to co-operate with Mr Burrow’s investigation. She said that she had gone to Mr Earlam, as Treasurer of the Borough Council, and to Councillor Williams, a member of the Centre’s Management Committee, because she had feared that otherwise there would be a cover-up and that she would be victimised. And she said that she had not co-operated with Mr Burrow’s investigation because she had not regarded him as truly independent, and because she thought of him as a friend of Mr Hampton.

On 25th January 2001 Miss Street attended, again with a union representative, a disciplinary interview at the Centre. Following that interview, Mr Pemberton wrote to her informing her that the Centre had summarily dismissed her for gross misconduct and breach of trust on the basis of her “unfounded and libellous” allegation against Mr Hampton and her refusal to co-operate with Mr Burrows’ investigation.

Mrs Street’s internal appeal against that dismissal was ultimately unsuccessful. Prior to its determination, she sought, in early February 2001, interim relief from the Nottingham Employment Tribunal maintaining that she had been unfairly dismissed on account of her disclosures and that she was entitled to automatic protection from unfair dismissal under sections 43C, 43G and 103A of the 1996 Act.

The Employment Tribunal found that Mrs Street’s various disclosures to Mr Earlam and Councillor Williams were qualifying disclosures under section 43B(1)(b) of the 1996 Act, as they were disclosures that she had reasonably believed tended to show that Mr Hampton had failed to comply with legal obligations to which he was subject, namely his contract of employment with the Centre. The Tribunal then considered whether those qualifying disclosures became protected disclosures under any of the sections 43C to H. It held that the disclosure to Councillor Williams fell to be considered under section 43C (disclosure in good faith to employer or other responsible person) and those to Mr Earlam, under section 43G (disclosure in good faith in other cases not covered by section 43C-F, but subject to the additional requirements set out in section 43G(1)(b) to (e) that I have mentioned).

The Tribunal concluded that none of Mrs Street’s three disclosures was protected, because none had been made in good faith. In relation to her two disclosures to Mr Earlam, it found that, notwithstanding its finding that she had not made them in good faith (a), she had satisfied the other requirements of the section, namely she had reasonably believed in the substantial truth of her allegations (b), she had not made the disclosures for personal gain (c), she had satisfied one of the conditions in section 43G(2), namely that she had reasonably believed she would be subject to a detriment if she had reported the matters to her employer (d), and that in all the circumstances it had been reasonable of her to make the disclosures (e). Thus, as in the case of her disclosure to Mrs Williams, her claim that her disclosures to Mr Earlam were protected foundered on the Tribunal’s finding that she had not made them in good faith.

On the issue of good faith, the critical issue for the Tribunal was, therefore, what exactly is meant by that requirement, common to all, save one, of the forms of protected disclosure provided for in section 43C-H, and what, if anything, it adds to the requirement of reasonable belief in its substantial truth in section 43F(1)(b)(ii) and 43G(1)(a) and, in the latter case, to the other requirements specified in section 43G(1), in particular, not for personal gain (c) and reasonableness (e). Mrs Street’s case was that good faith simply meant “honestly” and added nothing to that concept, where, in addition, a reasonable belief in the substantial truth of the allegation is required. The Centre’s case was that the requirement of good faith in those provisions must require something more or different from a reasonable belief in the truth of the allegations, as otherwise there would be no need for its inclusion in them.

The Tribunal clearly took the view that, although there was some overlap between the requirements of good faith and of reasonable belief in the honesty of the content of a disclosure, that of good faith did add something, namely a consideration of motive. Having taken into account the circumstances surrounding Mrs Street’s allegations, including their timing and her failure to co-operate with the later investigation, it concluded that none of them had been made in good faith, but had instead been motivated by her personal antagonism towards Mr Hampton. It, therefore, dismissed her claim to automatic protection under section 103A from dismissal. This is how it approached that matter of law in paragraph 13(a) of its extended reasons:

“We note that … good faith is the first matter which is required. It seems to us that there must be a certain degree of overlap between the concept of good faith in Section 43G(1)(a) and the reasonable belief in the substantial truthfulness as set out in Section 43G(1)(b). We find that applicant’s allegations were as far as she was aware, true and in that sense we find that she has complied with sub-section (1)(b). The question of how that information is used is of course a separate matter going back to the issue of good faith. There has been no suggestion that the applicant made the disclosure for personal gain. We then consider the matters set out in Section 43G(2) of which really the only relevant part is sub-section ‘(a) that, at the time he makes the disclosure the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer …’. We find that such was the applicant’s view of Mr Hampton that she did believe that a disclosure made to her employer would at best be ineffective and at worst would lead to what she believed had happened to others namely that if one was not for Mr Hampton one was perceived as being against him. Turning to Section 43G(3) we find that a disclosure to someone in Mr Earlam’s position namely Treasurer of the Local Authority which was a major founder of the respondent can properly be regarded as reasonable. Accordingly, in general terms we find that the applicant satisfies the vast majority of the conditions imposed by section 43G.”

Before moving on to the Tribunal’s consideration of good faith, I should say something about its favourable finding to Mrs Street on the issue of reasonableness ((e)) and, for this purpose, set out some of the potentially material factors in the non-exhaustive list of factors to which it was required, by section 43G(3), to have regard:

“… (a)” the identity of the person to whom the disclosure is made,

(b)

the seriousness of the relevant failure,

(c)

whether the relevant failure is continuing or is likely to occur in the future,

…”

It will be noted from the concluding words of the Tribunal’s reasoning on the issue of reasonableness that the only matter to which it appears to have had regard was the identity of the recipient of her disclosure, namely the reasonableness of making it to someone in Mr Earlam’s position as the Treasurer of the Local Authority as a major funder of the Centre, as if that was enough for the purpose. It may be that it overlooked the fact that it was required, in the words of section 43G(1)(e), to have regard to “all the circumstances of the case”, not just those potential candidates listed in section 43G(3). It may be that it confused its enquiry as to reasonableness under those provisions with that under section 43G1)(d) and (2) where satisfaction of any one of the conditions in section 43G(2) would suffice. It may be that it took the view that, although it had found, in considering the issue of good faith, that Mrs Street had made her attack on Mr Hampton in bad faith fuelled by her personal antagonism to him, it had to put that out of its mind when considering whether her conduct was “in all the circumstances of the case … reasonable …” If so, as will appear, I consider that it erred in those respects.

The Tribunal then went on to consider on the evidence before it, whether Mrs Street had acted in good faith when she wrote her two letters to Mr Earlam. In paragraph 13(b) of its extended reasons, it found that she had not acted in good faith for the following reasons: 1) her second disclosure to Mr Earlam contained a passing reference to something that she knew to be untrue (i.e. not sufficient to affect the allegation’s “substantial” truth for the purpose of section 43G(1)(b)); 2) many of the matters about which she had complained had occurred or had ceased to occur many years before; 3) she had learned of the secret fund allegation in March 2000, but had done nothing about it until her first disclosure letter on 22^nd May 2000; 4) her perception that some of her colleagues had been got rid of by Mr Hampton; 5) and her failure to cooperate with Mr Earlam or the Centre or Mr Burrows’ investigation after having made her disclosures. Having set out those matters, the Tribunal expressed its conclusion in the following terms:

“Accordingly in those circumstances we conclude that none of the disclosures made can be regarded as made in good faith but were instead motivated by the applicant’s personal antagonism towards Mr Hampton fuelled in particular by his perceived treatment of Mr Skinner’s and Councillor Williams’ cases. It therefore follows that the applicant has not made a Protected Disclosure and accordingly that cannot be the reason for her dismissal….”

The Employment Appeal Tribunal upheld the Employment Tribunal’s holding and analysis at paragraphs 25 to 27 of its decision:

“25.

As to good faith, we hold that there is a compelling finding of fact in the passage…[i.e. that in paragraph 29 above]. The Tribunal clearly had in mind the competing situations, that is, a faultless good faith disclosure and a disclosure made purely out of personal antagonism. It decided to reject the former description and accept the latter. There can be few areas on which the judgment of an Employment Tribunal is more fact-sensitive than in conducting such an exercise. As a matter of law, we see no question arising about that particular holding. Thus, it destroys the case (which would otherwise have been perfectly made by the Applicant) for a successful claim under section 103A.

26 We reject the contention that the simple finding that the Appellant believed the material, as far as she was aware, as being a complete answer. There is nothing inconsistent in an Applicant holding such a belief that the material is true and yet promoting it for reasons which are based upon personal antagonism. It seems to us that what Lord Denning had in mind, albeit in a different context [Secretary of State for Employment v ASLEF (No 2) [1972] 2 QB 455, at 492B-E (see paragraph 41 below)], was that the motive for which a person does a particular act can change its character from good to bad, and so here.

27.

We do not think that the slight overlap that there may be between section 43G(1)(a) and (b) and section 43[G](3) destroys the essential focus, recognised as fundamental in this case, on whether the Applicant acted in good faith. Thus, it is important for the Tribunal to assess motive and, as often, this matter is one of fact for it to determine in its own appreciation.

….

29.

Thus, the finding of lack of good faith in this case is one which was open to the Tribunal, having directed itself correctly as we hold. We agree that good faith involves the deployment of an honest intention and, just as in public law, actions of a person can be vitiated if a purpose is advanced not in accordance with the statute, here section 43G. [my emphasis]

”30. It is not, in our view, the purpose of the Public Interest Disclosure Act to allow grudges to be promoted and disclosures to be made in order to advance personal antagonism. It is, as the title of the statute implies, to be used in order to promote the public interest. The advancement of a grudge is inimical to that purpose. …”

It should be noted that the Tribunal, in paragraph 29, was content with the proposition that good faith involves the deployment of an honest intention.

Mr Joel Donovan, on behalf of Mrs Street, appeared at first in his submissions to accept that the requirement of good faith in section 43G(1)(a) is distinct from that of reasonable belief in the truth of disclosure in section 43G(1)(b). The distinction that he purported to draw was that, in addition to a reasonable belief in the truth of the disclosure, for it to be made in good faith a worker must make it “honestly” or with “with honest intention”. But when pressed by the Court in the course of his submission as to the meaning of “honestly” or “with honest intention” in this context and its distinction, if any, from reasonable belief in the truth of the information disclosed, he said that they are virtually “indivisible” in meaning. He suggested that, if motivation is relevant, it would have to be both malicious and predominant to amount to bad faith. However, he submitted that the Employment Tribunal, in finding that Mrs Street had believed in the truth of her allegations, accepted “in effect” that she had acted “honestly” or “with honest intention” and, thereby, in good faith.

Mr Donovan suggested that the Tribunal, in going on to find that nevertheless, Mrs Street lacked good faith, simply illustrated that it had wrongly considered “in good faith” to mean something more than or different from “honestly” or “with honest intention”. He focused on the implicit reference to motive by the Employment Tribunal, in its extended reasons, namely “that how … [the] information is used is … a separate matter going back to the issue of good faith”. He maintained that, whilst such a consideration might relate to the requirement of reasonableness in section 43G(1)(e) on which the Tribunal had expressly found in Mrs Street’s favour, it was a distinct issue from “with honest intention”, and the Tribunal had wrongly ignored or muddled the distinction.

In his submissions, Mr Donovan drew on and adopted the written submissions to the Court of Public Concern at Work (“Public Concern”), which it made, with the permission of the Court, as an interested party. Public Concern is an independent charity and a legal advice centre established in 1993 specialising in advising both employees and employers on “whistleblowing”. It is popularly known as “the whistleblowing charity”. The main thrust of its submission on this appeal, for which the Court is grateful, was that it would seriously damage the purpose of the 1998 Act and the protection it provides in the public interest to “whistleblowers” if ulterior motivation, in particular the promotion of a grudge, were to deprive a disclosure of the quality of having been made in good faith. It urged the Court to look at the general application of the Act, in particular, the protection that it provides against pre-dismissal reprisals. Its primary submission was that a disclosure made in good faith under the Act means simply one that is made honestly, that is with a view to something being done about the failure disclosed, and that where it is made with mixed motives, the good faith requirement is satisfied where it is made honestly in that sense even if accompanied by an ulterior motivation, such as a personal grudge.

Alternatively, Public Concern suggested that, if an ulterior motive can vitiate the requirement of good faith, even where the disclosure is made honestly in the above sense, it should only have that effect where: 1) it is so “wicked or malicious” that it approaches “dishonesty”; and 2) it is the predominant motive for the disclosure. Whilst Mr Donovan had reservations that the threshold to bad faith should be put as low as “approaching” dishonesty, he was prepared to accept Public Concern’s propositions as a “fall-back” submission should he fail in his primary one that motivation is irrelevant to the issue of good faith. At the very least, he argued, bad motivation should only negative good faith where it is the predominant motivation – and substantially so. Here, he said, the Employment Tribunal, at the very least, erred in failing to apportion in this way between good and bad motivations and in taking an “all-or-nothing” approach.

He relied in that respect on the express requirement in section 43G(1)(c) that the disclosure, if it is to be protected, must not be made for purposes of personal gain. He argued that a provision referring to such specific form of ulterior motive would be otiose if motive were relevant to the issue of good faith in section 43G(1)(a). Public Concern advanced the same argument in its written submission to the Court.

However, as Mr Donovan acknowledged, motivation is highly relevant to the requirement of reasonableness in section 43G(1)(e). Indeed, he conceded that if Mrs Street had fulfilled all the requirements, in which he substituted the words “honesty” or “with honest intention” for in good faith, but had made the disclosure out of pique or a grudge, as the Employment Tribunal found, she still risked being found to have acted unreasonably within section 43G(1)(e), having regard to the non-exhaustive list of factors in section 43G(3). Yet, as he acknowledged, albeit softly, the Tribunal had strangely absolved her of any unreasonableness, whilst at the same time found that she had not acted in good faith because of her personal antagonism towards Mr Hampton. In making that submission, he acknowledged that the Tribunal may have muddled the two requirements of good faith and reasonableness or may not have considered the issue of reasonableness under section 43G(1)(e) and (3) sufficiently widely. In short, he acknowledged that an ulterior motive could be a factor going to the reasonableness of disclosure and that, therefore, the best Mrs Street could hope for if she succeeded in this appeal on the good faith issue would be a remission of the issue of her disclosures to Mr Earlam under section 43G to the Employment Tribunal to reconsider the matter under the heading of reasonableness. (No such need for remission would arise in the case of the disclosure to Mrs Williams because that is governed by section 43C, which does not include a requirement of reasonableness.)

However, Mr Donovan maintained that there was a separate and important question as to the meaning of the requirement of good faith in these provisions that went beyond its application along with the clutch of other cumulative requirements in section 43G, namely whether it amounts to a requirement of “purity of motive”. Such an interpretation, he submitted would significantly weaken – or indeed subvert – the purpose of the 1998 Act from which the provisions in the 1996 Act derive, of protecting those who make disclosures of information in the public interest from victimisation. He suggested that it cannot be a proper interpretation of the provisions to hold that a “whistleblower” loses that protection by reason of bad motivation, even in tiny part, towards his employer, however serious the failure disclosed, however understandable his antagonism and however reasonable it may have for the disclosure to have been made to someone other than the employer.

Mr Colin Bourne, on behalf of the Centre, submitted that the separate but cumulative imposition by section 43G(1) of, inter alia, the requirements of in good faith and reasonable belief in truth, means that in good faith must mean something additional to or other than a reasonable belief in the truth of the information disclosed. He argued that, having regard to the nature of the wrongdoing in respect of which disclosures are specified in section 43B as qualifying for protection, the requirement of good faith must mean that the disclosure should be made for the purpose of disclosing one or more of those wrongdoings, not for some other ulterior motive such as personal antagonism to the person the subject of the disclosure, as the Employment Tribunal had found in this case. He submitted, therefore, that the Employment Appeal Tribunal correctly did not interfere with the fact-finding function of the employment tribunal.

As to the written submissions of the Public Concern at Work, Mr Bourne suggested that they overstate the risk of undermining the protection Parliament intended to confer on those making disclosure in the public interest. He said that where, as here, an Employment Tribunal has found that the worker, in making the disclosure(s) was motivated “by … personal antagonism” towards the person, it does not advance the public interest to protect such conduct.

Shorn of context, the words “in good faith” have a core meaning of honesty. Introduce context, and it calls for further elaboration. Thus in the context of a claim or representation, the sole issue as to honesty may just turn on its truth. But even where the content of the statement is true or reasonably believed by its maker to be true, an issue of honesty may still creep in according to whether it made with sincerity of intention for which the Act provides protection or for an ulterior and, say, malicious, purpose. The term is to be found in many statutory and common-law contexts, and because they are necessarily conditioned by their context, it is dangerous to apply judicial attempts at definition in one context to that of another. This is so even in closely related legislation such as the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995, in which sections 4(2), 2(2) and 55(4) prevent as being discriminatory for the relevant purpose treatment prompted by an allegation that is “false and not made in good faith”. In such a formulation which is concerned with the stark difference between truth or falsity, not, as here “reasonable belief in …[its substantial truth]”, the notion of “good faith” is the only vehicle for considering the honesty or dishonesty of the allegation. For those reasons, I do not consider that it is helpful to turn in this context to some of the more distant examples of the use of the expression that have been cited to us, including: In Secretary of State for Employment v ASLEF [1972] 2 QB, 455, CA, where the issue was whether ASLEF had caused or would cause its members to breach their contracts of employment under the Industrial Relations Act 1971 by “working to rule”, per Lord Denning MR, at 492 B-E, and Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd & Ors [1991] 2 All E 597, in the wholly different context of whether a company’s refusal to consent to an increase in pension benefits was subject to an extra-contractual obligation to act in good faith, per Sir Nicholas Browne-Wilkinson V-C, 606d-e, 607d-f and 608d-e.

I should, however, say something about one other example, Central Estates (Belgravia) Ltd v Woolgar; Liverpool Corporation v Husan [1972] 1 QB 48, CA, which concerned the meaning of “in good faith” in the Leasehold Reform Act 1967 on the issue whether motivation is relevant to whether something is done or said in good faith, Lord Denning’s words in that context, at 55, are a frequent point of reference:

“… under this statute a claim is made ‘in good faith’ when it is made honestly and with no ulterior motive. …”

However, the issue in that case was whether claims by two tenants under the 1967 Act to acquire the freehold and an extended lease of their respective properties were made in good faith so as to enable them to defeat their respective landlords’ claims for re-entry and forfeiture for breach of covenant under their leases. The issue was, therefore, the good faith of a claim, which does not necessarily involve consideration of the truth of any statement of fact in making it, and where motive, or honesty of motive was all. It is thus understandable that Megaw LJ in that context equated “in good faith” with “honestly”, saying, at 57:

“The words ‘in good faith’, in my opinion, mean ‘honestly’. A claim is not made honestly if it is made with the intention of committing a criminal offence, or of facilitating the future commission of a criminal offence. It does not make it any the less a dishonest claim because the intended criminal offence is itself not what is called an offence involving dishonesty.”

Whereas in Mrs Street’s case, the issue is the good faith of a disclosure containing a statement of fact - an allegation. If it falls within section 43C it involves no separately identified issue as to its truth or reasonable belief in its truth or other indicia of honesty. If it falls within section 43G there is required, in addition to good faith, reasonable belief in its truth, no motive of personal gain, on the contrary a good reason for not disclosing to the employer, and reasonableness. In short, these provisions may require Employment Tribunals on occasion to distinguish between good faith and honesty in a way not called for in Central Estates, notwithstanding Lord Denning’s seemingly conjunctive rather than disjunctive use of the words “honestly and with no ulterior motive”.

I say “may” require such a distinction because where a statement is made without reasonable belief in its truth, that fact would be highly relevant as to whether it was made in good faith; see, for example, Darnton v University of Surrey [2003] IRLR 133, per Judge Serota, QC, at para 24, as indeed it would also be highly relevant as to its reasonableness. Mr Donovan accepted – indeed he prayed in aid - that degree of overlap between good faith, reasonable belief in substantial truthfulness and reasonableness in all the circumstances. But it does not necessarily follow that, where a statement is made in that belief, it necessarily follows that it is made in good faith or reasonably. Where, as in a statutory provision like section 43G(1), the parliamentary draftsman has included the notion of good faith among a set of cumulative conditions of the qualification in question, it is plain that he contemplated that the notion of good faith should be capable of adding, according to the circumstances, something to that of reasonable belief in truth, as Mummery LJ appears to have accepted in his analysis of these provisions in ALM Medical Services v Bladon, at para 4(iii) (see paragraph 11 above). It is noteworthy too that in section 43G, and also in section 43F, good faith is the first of the cumulative conditions stipulated.

Nevertheless, giving focus to Mr Donovan’s concern that some bad motivation, some personal antagonism towards the employer, could, under the banner of bad faith, deprive him of protection even if he met all the other requirements of section 43G, it is important to start as Public Concern have stressed, with the context of the 1998 Act, the purpose and long title of which, for convenience, I repeat:

“An Act to protect individuals who make certain disclosures in the public interest; to allow such individuals to bring action in respect of victimisation; and for connected purposes.”

Public Concern, in its written submission, suggested that the practical difficulty posed by any suggestion that a grudge or personal animosity or other motive is a bar to protection would be to cause a worker, considering making a disclosure in the public interest, to fear that he might lose protection and discourage him from doing so. And, as it suggested, such a state of mind is often integral to claims of this sort. That is especially so, as a claim can only be brought under the Act once the worker making it has been dismissed, and it is, therefore, easy for his employer to identify and allege.

However, the authorities that Public Concern cited in support of its contention are not in point. The first was In re A Company [1989] 3 WLR 265, which concerned a company’s claim to restrain by way of interlocutory injunction a former employee from disclosing to a regulatory body its confidential material which he maintained showed impropriety by the company (see now, and cf, section 43J of the 1996 Act). The issue of motive arose not, as in Mrs Street’s case, out of any conditional obligation imposed by law to make such disclosure in good faith, but out of an assertion inessential to the company’s cause of action, based on the confidentiality of the information, that the former employee was motivated by malice. Scott J, as he then was, rejected the notion that either confidentiality of information or motivation of malice entitled the company to restrain disclosure of such information to a regulatory body, and, at 269, made the following comment on which Public Concern relied:

“… It may be the case that the information proposed to be given, the allegations proposed to be made by the defendant to F.I.M.B.R.A., and for that matter by the defendant to the Inland Revenue, are allegations made out of malice and based upon fiction or invention.

But if that is so, then I ask myself what harm will be done. F.I.M.B.R.A. may decide that the allegations are not worth investigating. In that case, no harm will have been done. Or F.I.M.B.R.A. may decide that an investigation is necessary. In that case, if the allegations turn out to be baseless, nothing will follow the investigation. And if harm is caused by the investigation itself, it is harm which is implicit in the regulatory role of F.I.M.B.R.A.. …”

However, it seems to me that that comment was more of a practical observation on the facts of the case than a proposition of law. And even if could be regarded as such a proposition or a pointer to the law, it would be both obiter and would say nothing about the effect of ulterior motive for doing something which, if it is to have a specific legal effect, the law requires to be done in good faith. Equally uninstructive on the issue of good faith as it is raised in Mrs Street’s case was Public Concern’s reliance on British Steel Corporation v Granada Television [1981] AC 1096, HL, for the general proposition that the common law’s underlying approach to public interest disclosures is that motive is generally irrelevant.

On the broad point of construction by reference to the stated purpose of the 1998 Act, the reasoning of the Employment Appeal Tribunal, at paragraph 30 (see paragraph 30 above) is to the point. Its purpose is not to allow persons to advance personal grudges, but to protect those “who make certain disclosures in the public interest”; namely those specified in section 43B of the 1996 Act. And it has to be remembered that even if a worker might be deterred from making a relevant disclosure because of concern that his employer might raise against him a suggestion of bad faith in the sense of a mix of motives, including personal antagonism, or fails in his section 103A claim on that account, all is not lost. His automatic protection provided by that section is lost, but he can still maintain an “ordinary” claim for unfair dismissal against his employer in which a mix of motives may not be fatal to his claim.