Employee dismissed after making whistleblowing disclosure - employee believing material disclosed true but motivated by personal antagonism - disclosure not in 'good faith' so not 'protected disclosure' and dismissal not automatically unfair

Street v Derbyshire Unemployed Workers' Centre: EAT (Judge McMullen, QC, Mr I Ezekiel and Mr P M Smith): 27 October 2003

An employee was dismissed after she had made a whistleblowing disclosure against her employer.

She brought a claim for unfair dismissal, alleging that she had been dismissed for making the disclosure and that the disclosure was a 'protected disclosure', dismissal for which was automatically to be regarded as unfair by section 103A of the Employment Rights Act 1996.

An employment tribunal dismissed her claim on the ground that, although she had believed the disclosure at the time she had made it, her personal antagonism to her employer meant that it had not been made in 'good faith', good faith being required by section 43G(1)(a) for a disclosure to constitute a 'protected disclosure'.

The employee appealed on the grounds that the disclosure had been made in good faith and that the tribunal had failed to consider her alternative claim of ordinary unfair dismissal.

Joel Donovan (instructed by the Bar Pro Bono Unit) for the employee; Colin Bourne (instructed by Graysons, Sheffield) for the employer.

Held, allowing the appeal in part, that there was nothing inconsistent in an employee holding a belief that the material was true and yet promoting it for reasons which were based on personal antagonism, for the motive for which a person did an act could change its character from good to bad; that, accordingly, it was important for the tribunal to assess motive and the conclusion that disclosure had not been in good faith was a finding which had been open to the tribunal; but that, since, on its true construction, the originating application did contain an ordinary unfair dismissal claim, the case would be remitted to the same tribunal for that remaining issue to be determined.