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• Speaker #0

  Today in the Indicator HR and Employment Law podcast, we're discussing the judgment in the case of Jackson and Chief Constable of Greater Manchester Police, in which the Employment Appeal Tribunal was asked to decide whether a whistleblower could cherry-pick to demonstrate reasonable belief. In this case, J, a senior police officer with Greater Manchester Police, raised a number of grievances relating to failed promotion attempts and made a complaint to the Independent Police Complaints Commission about cronyism in Greater Manchester Police, the impact this was having on the quality of police work and the knock-on effect on the commission of crimes which he said was causing harm to the public. J took a period of sick leave on the basis he was suffering with work-related stress and ultimately retired from the service. J then brought claims of whistleblowing and constructive dismissal against Greater Manchester Police. He claimed to have made protected disclosures to a prescribed person, the Independent Police Complaints Commission, and then to have been subjected to detriments which culminated in him being constructively unfairly dismissed. The hearing lasted for 102 days and involved vast amounts of evidence. The tribunal found that J had not made any protected disclosures and therefore all his claims were dismissed. It went on to find that in any event, J was not constructively unfairly dismissed. J appealed to the Employment Appeal Tribunal, asserting that only parts of his complaints to the Independent Police Complaints Commission were relied on by him in his claim as amounting to protected disclosures, and that, as he did not rely on the entirety of those documents, the Tribunal should only have taken into account the passages in the reports which he did wish to rely on when determining whether or not he had made protected disclosures. The Employment Appeal Tribunal dismissed J's appeal, finding that it is not open to whistleblowers to cherry-pick specific parts of disclosures to rely on as part of a whistleblowing claim where the elements they sought to cherry-pick formed part of longer disclosures, as they did in J's case. Accordingly, the Tribunal was entitled to take note of whatever parts of the report to the Independent Police Complaints Commission. It found to be relevant to the alleged disclosures when assessing J's claim and was right to consider them in the context of the wider allegations. It noted that where disclosures are made to regulators rather than direct to an employer, the legislation recognises the need for a higher level of belief in the veracity of the disclosures by the person making them, presumably due to the additional potential damage that can be caused to an organisation when disclosures are made to someone other than the employer, and that it is not sufficient that only the gist of a disclosure is reasonably believed to be substantially true by the person making it. Rather, to succeed in establishing whistleblower protection, J had to demonstrate that he reasonably believed that the information disclosed in relation to each alleged protected disclosure was substantially true. and so was every individual allegation contained within those disclosures. Accordingly, the Tribunal had taken the correct approach in looking at all the allegations J made in relation to each of the alleged disclosures, rather than simply looking at the parts of the disclosures as stated in J's claim in isolation. The Employment Appeal Tribunal noted that it was not open to J to edit out the parts of his own disclosures that he did not wish the Tribunal to look at. It also noted that while the Tribunal was entitled to consider the report as a whole. J was not required to show that he reasonably believed that the totality of the report was substantially true, only that the parts which related to the alleged protected disclosures were. This meant each allegation relating to each of the disclosures, not merely the allegations he wished to hand-pick in relation to each one. The Employment Appeal Tribunal was satisfied that this was the approach the Employment Tribunal had taken, and therefore it had been entitled to find that J lacked the required belief for whistleblower protection. Look out for further episodes in this series to stay up to date on all things HR and employment law related.