THE HONOURABLE MR JUSTICE MANSFIELDDR GILLIAN SMITH MBEMISS NATALIE SWIFT
Between
Mr PETER J. JACKSONAppellantTHE CHIEF CONSTABLE OF GREATER MANCHESTER POLICERespondentKaren Moss (instructed by Slater & Gordon) for AppellantSimon Gorton KC and David Tinkler (instructed by Greater Manchester Police) for RespondentHearing Hearing dates: 30 June 2026 to 3 July 2026JudgmentSUMMARYWHISTLEBLOWINGThe Claimant, a former senior police officer, appealed against the dismissal of his claims for whistleblowing detriment and constructive automatic unfair dismissal contrary to ss.47B and 103A Employment Rights Act 1996. He had relied on passages within three lengthy reports he had made to the Independent Police Complaints Commission as amounting to 19 protected disclosures to a prescribed person under section 43F Employment Rights Act 1996. The Employment Tribunal held that none of the alleged disclosures was a protected disclosure and that, in any event, the Claimant had not been constructively dismissed.The Claimant appealed in relation to six of the 19 alleged protected disclosures and also appealed against the finding in relation to constructive dismissalHeld: The Tribunal had not erred in its approach to identifying “the information disclosed” for purposes of s.43B and s.43F of the Act. Where the Claimant relied on selected passages from longer reports submitted to the prescribed person, the Tribunal was entitled to consider material in those reports which was closely related to the passages relied on. The Tribunal was not confined to the passages quoted in an agreed List of Issues where, in the interests of justice, it was necessary to consider what was the information disclosed in context and in the round. Further, there was no procedural unfairness in that approach. The Claimant had had the opportunity to deal with the additional passages taken into account by the Tribunal.The Tribunal had also correctly approached section 43F. A worker who makes a disclosure to a prescribed person must reasonably believe that the information disclosed, and any allegation contained in it, are substantially true. That assessment is qualitative. The Tribunal did not apply a “95% true” test and was entitled to find, in relation to the disclosures pursued on appeal, that the Claimant lacked a reasonable belief in the substantial truth of important allegations or that the alleged qualifying disclosure requirements were not met. The Tribunal did not lose sight of, or mischaracterise, the substance of the information and allegations.The Tribunal did not err in treating delay and the Claimant’s conduct in raising matters through grievances as potentially relevant to whether he genuinely and reasonably held the statutory beliefs required under section 43B(1) or reasonably believed that the disclosures were made in the public interest. Its credibility findings and evaluative conclusions were matters for Tribunal and were not perverse.The application to amend the grounds of appeal to introduce a new point on the construction of section 43F was refused. The point was not within the existing ground, was raised too late, had not been argued below and was in any event without merit.The constructive dismissal grounds were academic because no protected disclosure was established. In any event, the Tribunal had made no error of law in finding that the Claimant did not resign in response to any repudiatory breach, that no relevant last straw was established, and that he had affirmed the contract.The Appeal was dismissed on all grounds.
[1]This appeal concerns the Employment Tribunal’s approach to determining whether Mr Jackson (“the Claimant”, as he was below) made protected disclosures for the purposes of s.43A Employment Rights Act 1996. Further questions arise as to the Employment Tribunal’s application of the principles relevant to constructive dismissal.[2]The Claimant was a long serving police officer who alleged that he had made protected disclosures to a prescribed person, the Independent Police Complaints Commission (“IPCC”). As a result, he claimed to have been subjected to detriment by the Respondent, culminating in his constructive dismissal.[3]The tribunal, sitting in Manchester, comprised Employment Judge Holmes sitting with Ms Hillon and Mrs Conlon (“the Tribunal”). The claim was conducted on a vast scale. The final hearing occupied 102 days of hearing (not including deliberation time) between 1 November 2021 and 16 May 2023.[4]The Tribunal sent the parties a reserved judgment with reasons on 12 February 2024 (“the Reasons”). The Tribunal found that(1) the Claimant made no protected disclosures, so all his claims were dismissed; and(2) the Claimant was not, in any event, constructively dismissed. The Reasons for that judgment run to 381 pages.[5]The Claimant raises 10 grounds of appeal (numbered 1-9, but ground 7 is in two parts:7.1 and7.2 ). There was an application to amend to introduce a new point made during the hearing before us, which we will address below. The argument before us in the EAT took more than three days.[6]By the time of the liability hearing, the Claimant alleged that three Protected Disclosure Reports he made to the IPCC contained 19 protected disclosures (“PDs”). The Tribunal found that none of the 19 PDs amounted to protected disclosures. The Claimant appeals in relation to six of those only: PD 1.2, PD 1.3, PD 1.5, PD 1.12, PD 3.1 and PD 3.5.[7]Grounds 7 and 8 challenge the Tribunal’s decision that, even if the Claimant had made protected disclosures, the circumstances in which he served notice of retirement did not amount to a constructive dismissal.
Legal Framework: Protected Disclosures
[8]By section 43A Employment Rights Act 1996, a protected disclosure means a qualifying disclosure which is made by a worker in accordance with any of sections 43C to 43H. Section 43B sets out the requirements for a qualifying disclosure: 9. 43B Disclosures qualifying for protection. (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (da) that sexual harassment has occurred, is occurring or is likely to occur, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. ……. (5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).[9]For s.43B to be engaged at all, there must be a disclosure of information by a worker. The worker must believe certain things in relation to that disclosure. The requisite beliefs for the purposes of s.43B are(a) that the information disclosed tends to show one or more relevant failures; and(b) that the disclosure is in the public interest. In each case, the belief must be a reasonable belief.[10]Each of sections 43C to 43H deal with additional requirements which apply depending upon the person to whom the disclosure is made. Where a disclosure is made to the worker’s employer, s.43C provides that a qualifying disclosure is a protected disclosure without any further requirements. Once a disclosure is made to someone other than the employer, further requirements may apply. This case concerns a disclosure to a prescribed person, the IPCC. For such a disclosure, section 43F sets out the requirements for a qualifying disclosure to be a protected disclosure (our emphasis added below): 43FDisclosure to prescribed person. (1) A qualifying disclosure is made in accordance with this section if the worker— (a) makes the disclosure ... to a person prescribed by an order made by the Secretary of State for the purposes of this section, and (b) reasonably believes— (i) that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and (ii) that the information disclosed, and any allegation contained in it, are substantially true.[11]There was no dispute in this case that disclosures were made to a prescribed person, and that the Claimant had the belief required by subsection (1)(b)(i). For the purposes of this claim, the requisite belief under s.43F is the reasonable belief that the information disclosed, and any allegation contained in it, are substantially true. We will refer to this, for shorthand labelling purposes, as the “substantial truth” or “substantially true” question. We do not lose sight of the fact that the question is whether the Claimant reasonably believed in the substantial truth of the relevant matters, not whether the relevant matters were, in fact, substantially true.[12]The same formulation as appears in s.43F(1)(b)(ii) also appears as one of the conditions (amongst others) in s.43G (disclosure in other cases) and s.43H (exceptionally serious failures).[13]In Twist DX Ltd. v Ames UKEAT/0030/20 Linden J made the following points about the general approach to these provisions, by reference to the earlier Court of Appeal decision in ALM Medical Services Ltd. v Bladon [2002] IRLR 807 and Babula v Waltham Forest College [2007] ICR 1026. At paragraph 45 he cited the following passage from paragraph 2 of ALM (per Mummery LJ): The self-evident aim of the provisions is to protect employees from unfair treatment (i.e. victimisation and dismissal) for reasonably raising in a responsible way genuine concerns about wrongdoing in the workplace. The provisions strike an intricate balance between(a) promoting the public interest in the detection, exposure and elimination of misconduct, malpractice and potential dangers by those likely to have early knowledge of them, and(b) protecting the respective interests of employers and employees …[14]At paragraph 47, Linden J accepted submissions that the provisions should be read broadly and with regard to substance rather than form. The concept of a qualifying disclosure should not be interpreted so as to place onerous requirements on the worker if they are to qualify for protection, nor to create potential pitfalls for the unsuspecting worker, unless the requirements of the statutory provisions require this. They should not be interpreted in a way which introduces technical requirements which, if unfulfilled by the worker, will leave them exposed despite the fact that they are sincere and may have had to pluck up courage to come forward in the public interest.[15]In Korashi v Aberfawe Uro Morgannwg University Local Health Board [2012] IRLR 4, the EAT (HHJ McMullen QC presiding) considered the requirements of the additional layer placed by s.43G upon the requirements of s.43B. The “substantial truth” question in s.43G is the same as in s.43F. Paragraphs 64 to 66 are strictly obiter, but they are persuasive and instructive. 64 It follows that what the tribunal decided thereafter, and our views upon it, are not necessary for the decision. If we were to decide we would follow the reasoning of Mr Wallington QC. The additional layer placed by s.43G upon a disclosure made pursuant to s.43B is that the claimant reasonably believes that ‘the information disclosed and any allegation contained in it are substantially true.’ The dispute between the parties is as to whether it is sufficient that the gist of a complaint, here as to the competence of Mr A, qualifies as being substantially true or whether the information and each allegation must be reasonably believed to be true. Counsel say that there is no authority on this. The example given by Mr Wallington is of a disclosure made by scattergun which includes one point which qualifies under s.43G and nine which do not. This he contends would not mean that each allegation is substantially true. 65 In this case it is plain that not all the allegations made to the GMC were believed by the claimant to be substantially true. Instead, reliance is placed upon the gist which is that Mr A was not properly qualified. Applying the direction which is to give a generous approach to whistleblowers, we do not consider that this subsection would be satisfied. The structure of s.43 is to impose additional obligations the further removed the recipient of the information is from the worker’s employer. The first place for any worker to turn is to his employer. Next is the legal adviser (s.43D) government minister (s.43E), regulator (s.43F) and then any other person (ss.43G, 43H). At each stage additional responsibilities are placed upon the discloser. The reason for this is understandable. You do not go beyond the person who might immediately take action unless there are special circumstances as set out in each of the sections. A fairly weak condition is placed upon disclosure to an employer but strong conditions are placed upon disclosure to those outside the relationship. That is why s.43G(1)(b) requires not only the information but each allegation under it to be substantially true. It will be recalled that under s.43B allegations are not required to be made. This is the softest treatment of information provided by the statute; the use of the words ‘tend to show’ and ‘reasonable’ belief without the requirement of allegations being made all point in that direction. 66 However, once one goes outside the immediate confines of the employment relationship and to an outsider, here the GMC, additional layers of responsibility are required upon the discloser. The information must in the reasonable belief of the discloser be substantially true. There is no obligation to make allegations but if they are made they too must in the reasonable belief of the discloser be substantially true. Both information and allegations must fit that criterion. Here on the facts found by the tribunal they did not. If we were required to decide this matter it would not be sufficient to show that a matter was believed to be substantially true when a number of the allegations were not so believed.[16]We take the following important points from Korashi; i) For the purposes of s.43F, it is not sufficient that the gist of a disclosure to a prescribed person is reasonably believed to be substantially true. ii) The first place for any worker to turn is their employer. You do not go beyond the person who might immediately take action unless there are special circumstances as set out in the Act. “Strong conditions” (paragraph 65) and “additional layers of responsibility” are placed upon disclosure outside the work relationship.[17]These dicta of HHJ McMullen QC reflect the remarks of Mummery LJ in ALM (quoted above) that the provisions are designed to protect the interests of workers who reasonably raise concerns in a responsible way; they strike an intricate balance between competing public interests.[18]In our view HHJ McMullen QC’s analysis is correct and we adopt it.[19]HHJ Tayler touched on the policy underlying the structure of the provisions in Kealy v Westfield Community Development Association [2023] EAT 96, another s.43G case, when he said: 28. It may seem surprising that a higher standard of belief must be held in respect of the relevant failure when making a disclosure to a person other than a worker's employer. But on analysis, the distinction is not surprising. A worker may not be able to assess whether information that is disclosed tends to show a relevant failure if it came from a third party, and might even doubt it is correct, but feel that if true it is so important it should be disclosed to her employer. It is not surprising that such a worker would fall within the protection if the disclosure was made to her employer but a higher standard, requiring a reasonable belief in the truth of the information and any allegation contained in it may be required when it is made to a third party.
The Background Facts
[20]The Claimant joined the Respondent in 1986. He rose to the rank of Detective Chief Inspector by 2007. He subsequently spent some time in higher roles as a temporary appointment, for instance as a Temporary Superintendent (“T/Supt” or “TD/Supt”) in 2008. However, he did not achieve further promotion on a permanent basis: a matter which became a key theme in the dispute.[21]In June 2012, the Claimant first raised a grievance about lack of support in the promotion process. In his grievance, he raised a number of matters which later featured in the disclosures he made to the IPCC.[22]In July 2012, the Claimant presented his first Employment Tribunal claim. The claim was for sex discrimination, not whistleblowing. He alleged that he was unfairly denied the opportunity for promotion. He said that there was a culture of “cronyism, favouritism and discrimination” within the Respondent, which saw some officers unfairly advanced and others unfairly disadvantaged. He specifically compared himself to DCI Denise Worth who had been supported for promotion despite, he said, the fact that she was not as strong a candidate as himself. This first tribunal claim was subsequently withdrawn.[23]At around the same time as this first claim, in June 2012, the Claimant raised a grievance about lack of support in promotion. The grievance was ultimately unsuccessful, concluding in an appeal decision in March 2013. In its Reasons, the Tribunal recounts the history, in 2012 and 2013, of the grievance, the Claimant’s attempts at promotion, and meetings with senior leadership held by the Claimant and or his Federation representatives. It is not necessary to address this background in this judgment, as by the time of the liability hearing, none of this was alleged to have given rise to either protected disclosures or detriments.[24]In January 2014, the Claimant contacted the IPCC and stated that he wished to disclose information as a whistleblower. He met with the IPCC on 31 January 2014, together with his Federation representative. The Claimant handed to the IPCC the three documents that are claimed to contain his protected disclosures. Protected Disclosure Report 1 (“PDR1”), Protected Disclosure Report 2 (“PDR2”) and Protected Disclosure Report 3 (“PDR3”).[25]The Claimant alleges that he was subjected to a series of detriments from March 2014 onwards because he made protected disclosures to the IPCC. 22 specific detriments were alleged. As we will explain below, the Tribunal did not need to make findings on the detriments. The Claimant was signed off with work-related stress in April 2016. Thereafter he did not return to work. At the time he went off sick, the Claimant had a grievance pending, which he claimed was delayed by the Respondent. In the course of that grievance, there was a failed mediation. The Claimant served notice of retirement on 28 November 2016, which took effect on 31 January 2017. In his amended second claim form, he claimed he was constructively dismissed.
The Three Protected Disclosure Reports
[26]PDR1 is 21 pages long. It is dated 20 June 2013. Various passages within it are said to be protected disclosures – PD1.1 to PD 1.17. The report begins by stating: I wish to make a protected disclosure against Greater Manchester Police and request “Whistleblower” status.[27]Section A is headed “Introduction – Cronyism and ‘corrupt practices’ within GMP”. It begins: (i)A culture of cronyism exists within GMP which is seeing officers promoted into senior positions on the basis of their close relationships with Chief Officers and influential Chief Superintendents rather than on account of their experience, skills and abilities. A number of examples of cronyism are detailed within this report. 28. The Claimant further develops this point in the remainder of the section, paragraphs (ii) to (vii), describing the culture of cronyism as a corrupt and unfair practice. The practice, he says, has led to officers being promoted into positions for which they do not possess the skills and experience. The culture existed at the highest levels, including the Chief Constable, and had led to distortion of the higher ranks towards inexperienced officers from Cheshire. There had been serious failings and misconduct by those promoted, but they had been ignored or covered up.[29]The Claimant then set out examples in sections B to M. The PDs in issue in this appeal appear as follows.[30]PD 1.2 is contained within section B “When cronyism goes badly wrong! Operation Nixon”. PD.1.3 is contained within section C “Review of Operation Nixon – A cover up!” Operation Nixon was an investigation, headed by TD/Supt Scally into a violent criminal and paedophile (“Nominal 1”). Section C sets out TD/Supt Scally’s alleged lack of experience and ability, and flaws in the process by which he was appointed. It sets out an incident where TD/Supt Scally failed to intervene when, while under surveillance, Nominal 1 had a 13 year old boy in his home for 2 hours. He said that as a result of TD Scally’s failure to act, “it is understood that the paedophile was allowed to sexually abuse the boy in the house”. He accused TD/Scally of the offence of misconduct in public office. The Claimant then went on to allege that when a review was commissioned into Operation Nixon, the failure regarding the 13 year old boy was covered up by senior officers.[31]PD 1.5 is contained within section D “Operation Somerville – The murder of Mark Short”. Section D is the first of six sections which deal with four murders committed by Dale Cregan and the Respondent’s handling of them. PD 1.5 concerns the Respondent’s decision, in June 2012, to allow Cregan to be released on bail after he had been arrested on suspicion of the first murder but before the further murders had been committed. DCI Worth and TD/Supt Scally were involved in managing the investigation.[32]PD 1.12 is contained within Section L “Cronyism, misconduct and more cover ups!” That section begins: Detailed below are further examples of cronyism and how senior officers have used their power and influence to cover up the failings of their ‘favoured’ friends and associates.[33]The section then sets out examples relating to five different officers. “Example 2” relates to DCI Snowball and contains PD 1.12. The Claimant set out that DCI Snowball was part of ACC Sweeney’s “gang” and had been appointed an Acting Superintendent despite failing an assessment. He had placed bugging devices in senior officers’ offices and recorded their conversations, but the ensuing investigation only gave him a “slap on the wrist” instead of a gross misconduct finding, and his career was further advanced.[34]Section N “Conclusions” begins as follows: The many failings of GMP highlighted within this report owe much to the culture of cronyism and the corrupt practices that are flourishing within the force. It is a culture that has seen friends and colleagues of senior officers promoted into positions that are beyond their skills and abilities. It is a culture that spawned ‘sham’ promotion selection processes. It is a culture that has put the public and officers of GMP at risk of harm. It has seen staggeringly bad leadership and decision-making; Which has resulted in children being sexually abused and raped, members of the public killed and two police officers lose their lives. This report has also highlighted that some senior officers within GMP have acted in a manner which is potentially criminal in nature. It has also highlighted the lack of integrity and honesty at the highest levels in the Force and a desire to ’cover things’ up.[35]The Claimant goes on to say that if his earlier grievance had been heeded, and experienced officers had been in charge of Operation Nixon, then a boy would have been saved from abuse and a second boy may have been saved from being raped. If experienced officers had led Operation Somerville, subsequent murders may have been prevented.[36]PDR2 is dated 20 June 2013. It is three pages long. It was relied on in the proceedings before the Tribunal as containing one PD. That failed and is not subject of appeal.[37]PDR3 is dated 16 January 2014. It is 11 pages long. It is relied on by the Claimant as containing PD 3.1 to PD 3.5. Although PDR3 was submitted to the IPCC, it is addressed to an internal audience at the Respondent and is framed as a grievance and a complaint of victimisation as a result of the Claimant’s “whistleblowing report”. It begins with five pages of complaint about the way in which the Claimant has been treated, and the way in which his report has been handled.[38]PD 3.1 is contained within a section headed “3 Warnings proved right – further failings!”. PD 3.5 is contained within a section headed “4 Further concerns re Superintendent Promotion Process, the continuing smell of cronyism and further risks to the public”. Section 5, “Conclusions” begins as follows: I have revealed a culture of cronyism that I believe is out of control in GMP. I believe it is a corrosive and toxic culture. It is seeing officers advance beyond their ability and their failings have resulted in members of the public becoming victims of serious crime. The risks continue. I am really concerned about the culture of secrecy that has developed amongst senior officers and around the Force Command team; which seeks to hide their failings and those of their colleagues.
Procedural History
[39]We have referred already to a first claim form presented by the Claimant in July 2012, claiming sex discrimination. That was withdrawn in October 2013. The decision under appeal concerns two claim forms: the first presented in July 2014; the second in September 2016. The Claimant’s legal team produced Consolidated Grounds of Complaint (“CGoC”) in March 2017.[40]The claims were for detriments on grounds of having made protected disclosures, and automatic unfair dismissal pursuant to ss.47B and 103A Employment Rights Act 1996. The claims depended upon the Tribunal finding that the Claimant had made one or more protected disclosures.[41]Ground 1 of the appeal concerns the procedure adopted by the Tribunal in identifying the relevant information disclosed for the purposes of the alleged protected disclosures. Ground 2 alleges that the Tribunal erred in the information it took into account. To understand these grounds, it is necessary to set out in some detail the way in which the framing of the alleged protected disclosures developed.[42]Under the heading “Protected Disclosure”, paragraph 6 of the CGoC pleads “The Claimant contends that he has made a number of protected disclosures pursuant to section 43A of the Employment Rights Act 1996, as follows”. Paragraphs 7 to 89 then set out a factual narrative of events, under the sub-heading “Background”. The narrative introduces PDR1, PDR2 and PDR3. Under a further sub-heading “Protected Disclosures”, further narrative is set out, before the following, at paragraph 94: It is averred that the three Protected Disclosure Reports, the Claimant’s three written grievances and the contents of the conversations that he had with various senior officers as set out in full above, amount to protected disclosures within the meaning of section 43A of the Employment Rights Act 1996. Specifically, it is averred that in these documents and conversations the Claimant disclosed information, as set out above, which, in his reasonable belief, tended to show that the following had taken place, was taking place or was likely to take place as set out in the Scott Schedule: A criminal offence pursuant to section 43B(1)(a) ERA 1996 A breach of legal obligation 43B(1)(b) ERA 1996 A danger to health and safety of any individual s.43B(1)(d) ERA 1996.
A breach of legal obligation 43B(1)(b) ERA 1996
(a) ERA 1996 A breach of legal obligation 43B(1)(b) ERA 1996
[43]Paragraph 96 pleads that the disclosures were made to the Claimant’s employer pursuant to s.43C ERA 1996, and to the IPCC, being a prescribed person pursuant to s.43F ERA 1996.[44]Subsequently, the claim was narrowed to rely only on the PDRs sent to the IPCC. The claim was pursued under s.43F. An attempt was made by the Claimant to amend the claim to argue that the disclosures to the IPCC were to be treated as made to the Respondent pursuant to s.43C(2), but the Tribunal did not permit that claim, and there is no appeal against their finding.[45]The CGoC then set out detriments, commencing with the Claimant being named as a whistleblower in March 2014 (paragraph 98) and running through to him being signed off sick with work related stress in April 2016 and the raising of a grievance at that time. The Claimant claims that he retired, in November 2016, due to the detrimental treatment of him. His notice of retirement taking effect on 31 January 2017. This was alleged to be a constructive automatically unfair dismissal.[46]The Scott Schedule set out over 30 unnumbered protected disclosures. All derived from the PDRs. They were described by subject matter, rather than by quotation from the PDRs or reference to paragraph numbers.[47]It is not necessary to set out in detail the history of the case management of the proceedings. The Tribunal set out the procedural history in Annexe A to the Reasons, and lists the hearing days in Annexe B. We note the following, which are relevant to the grounds raised below.[48]The Claimant’s lawyers produced a List of Issues in February 2018. In an amended form it was agreed on 1 December 2021 (“the LOI”). The LOI runs to 62 pages. In an introductory section headed “The Protected Disclosures” it states that the substance of the protected disclosures made by the Claimant was set out in PDR1-PDR3. It states (paragraph 6) that the Claimant was subjected to detriment and constructively dismissed because: i) He forwarded PDR 3 to his employer (a claim in due course not pursued); ii) He handed PDR1-PDR3 to the IPCC; iii) He was interviewed by the IPCC for three days, during which he discussed his disclosures in great detail and made protected disclosures.[49]The LOI then sets out, by reference to the PDRs, 23 alleged protected disclosures. 17 derived from PDR1 (PD 1.1 to 1.17); one from PDR2 (PD 2.1); and five from PDR3 – (PD3.1 to PD 3.5). By the time the hearing commenced, four PDs had been abandoned, leaving 19 in issue.[50]The format in which each is set out is the same. First there is a headline. Under a sub-heading “Information Disclosed” there is a summary paragraph, and then a paragraph with specific references to passages in the relevant PDR. Where the Respondent has admitted that the PD involved the disclosure of information, that is identified. Under a sub-heading “Qualifying disclosure” questions are asked as to whether the Claimant had a reasonable belief that “This disclosure” (i.e. the “Information Disclosed” identified in the preceding paragraphs): was made in the public interest and tended to show a relevant failure; and as to whether the Claimant reasonably believed that the information disclosed, and any allegation contained in it, were substantially true.[51]Taking PD 1.2 as an example, LOI paragraph 14 reads: Information disclosed: In the course of an operation (Operation Nixon) in which a high-profile violent paedophile was under surveillance TD/Supt Scally deliberately decided not to intervene and safeguard a 13 year old boy when the subject of the surveillance went into a house with the boy, drew the curtains, and remained in the house with the boy for two hours. TD/Supt Scally refused to allow any intervention in spite of protests from other officers. As a result of the failure to take any action against the paedophile who was under surveillance, the paedophile later went on to rape a 15 year old boy. [CGoC 7,9,18,19 and 45.][52]Paragraph 15 reads: PD 1.2 was set out in detail at paragraphs (x)-(xxviii) and (xxxvii)-(xxxviii) of PDR1. Those paragraphs were worded as follows:[53]There is then a quotation of paragraphs from PDR1. Although the quotations begin with the words set out above “Those paragraphs were worded as follows”, the quotation in fact only includes a selection of paragraphs from (x)-(xxviii) and (xxxvii)-(xxxviii). Those are (x)-(xiv) and (xxxvii) to (xxxviii). Even in relation to those paragraphs, the latter two are only quoted in part.[54]Paragraph 16 records that the Respondent admitted that PDR 1.2 involved the provision of the information set out in CGoC paras 18,19 and 45. Paragraph 17 then reads: Qualifying disclosure: Did C reasonably believe that this disclosure was made in the public interest and that it tended to show(a) that a criminal offence, namely misconduct in public office, had been committed by TD/Supt Scally; and/or(b) that there had been a failure to comply with one or more legal obligations, namely (i) the duty to protect the public and prevent crime; and/or (ii) the Respondent’s duties under the Human Rights Act 1998 (HRA) and Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) to safeguard the life of the 13 year old boy; and/or (iii) the duty of a police officer to comply with the standards of professional behaviour set out in Schedule 2 to the Police (Conduct) Regulations 2012 and in particular the standards of honesty and integrity; duties and responsibilities and discreditable conduct; and/or(c) that the health and safety of any individual, namely the 13 year old boy, had been endangered.[55]Paragraph 18 then reads: In relation to the Claimant’s disclosure to the IPCC, did the Claimant reasonably believe that the information disclosed and any allegation contained in it, were substantially true.[56]The liability hearing commenced on 1 November 2021. After a number of preliminary matters, evidence did not begin until 2 December 2021. The evidence was heard in seven tranches, through to December 2022. It appears from Annexe A to the Reasons that the Claimant’s evidence took nearly six weeks of hearing time.[57]Both sides prepared lengthy written submissions. Oral submissions commenced in February 2023, but on the first day of that tranche of hearing days the matter was relisted and submissions took place in April and May 2023. The last day of hearing (Day 102) was in May 2023.[58]Part way through the evidence, in a case management order of 11 March 2022, the Tribunal invited the Respondent to consider making admissions in respect of “more serious, and operationally based, disclosures allegedly made by the Claimant”. In response, the Respondent produced a written submission “Note on Admissions re Alleged PD’s” dated 12 June 2022. The Respondent stated that it was not possible to make admissions. It made the point that the Claimant’s disclosures needed to be taken as a whole, and the Tribunal could not simply look at the selective portions relied on by the Claimant’s legal advisers. Taken as a whole (even in relation to individual PDs), the Respondent could not admit there were protected disclosures. The Respondent made the following general points as to the Claimant’s approach: 9. The tension between what C has stated and believed and how his case has been advanced in his pleadings and the LoI is clear: the advisers have sought to atomise his complaints and present only parts of them as PD’s. There is a vast amount of material that has been discarded or conveniently not pursued. That will form the basis of submissions and analysis document from R at the end of this case. But for these purposes C’s advisers have chosen to select (and very often then selectively edit) some of the particulars of cronyism that C identified. 10. R submits that C’s alleged PD's must be assessed by reference to section 43B and section 43F as a whole and not selected matters that C seeks to rely on for advancing his claim. The essential PD is cronyism. The alleged PDs are but a small part of that cronyism allegation. 11. R does not therefore make any admissions of the alleged PDs as C has legally chosen to present them, nor on the macro allegation of cronyism (which the ET of course is not called on R to assess).[59]The Respondent then set out two examples of C’s approach. One example was PD 1.2. The Respondent argued that although the heading of PD 1.2 was “decision by Scally not to intervene to protect a child”, PD 1.2 contained far reaching allegations which go beyond the scope of the heading. The Respondent argued that read as a whole PD 1.2 included seven matters, which included that “Nominal 1” was allowed to sexually abuse a child; and that as a result of the failings of Operation Nixon, Nominal 1 was able to rape a 15 year old boy at a later date. The Respondent then set out the IPCC’s conclusions, pointing out that its conclusions about TD/Supt Scally were different to the Claimant’s allegations. The Respondent concluded: An admission by R that PD 1.2 was a protected disclosure would require an admission that C reasonably believed the information and allegations set out at paragraph 15 above to be substantially true. This is not an admission that R is able to make. C had no direct involvement in Op Nixon. C did not take any steps to verify the truth of the information upon which he based his allegations. C’s allegations went further than the information on which he relied. C made allegations which were manifestly incorrect. C exaggerated and intensified his allegations over time.[60]In the middle of the period of closing submissions the Tribunal held a preliminary hearing to consider an application by the Claimant to amend to rely on s43C(2) ERA 1996. That was held on 9 May 2023. The application was refused. At that time, the Respondent submitted further written submissions dealing with the scope of the PDs, dated 9 May 2023. The Respondent made two points: i) Was the Claimant obliged to prove his requisite belief for all of the information and allegations contained in PDR1-PDR3? ii) If not, can the Claimant further edit or fillet the ones he relied on?[61]As to the first point, the Respondent argued that the Tribunal could have regard to abandoned parts of the PDRs in deciding whether any of the 19 PDs were protected disclosures. It also argued that if the Claimant failed on any one of the 19 PDs, then he failed to prove the requisite substantial belief in all 19 for the purposes of s.43F.[62]As to the second, “filleting” point, the Respondent argued: At this point R refers to the appended analysis of how the LoI recite parts of C’s PDRs (in yellow) and yet omits certain sections and, indeed, whole paragraphs from the PDRs which form part of the same disclosure (in red). The visual effect of this is arresting and the scale and extent of C’s editing or filleting of his LOI is clear; and that clearly (as is submitted below) is an impermissible exercise.[63]The Respondent then referred back to a table produced in its written closing submissions which had highlighted how the Claimant had filleted out some of the express wording of the PDRs. The Respondent argued: C must rely on the unedited and complete disclosure of information and allegations that he disclosed to the IPCC and C cannot treat this as a matter for his editorial election.[64]The Respondent then raised a number of examples of allegations being filleted out, including PD 1.2.[65]To accompany these submissions, the Respondent produced what has become known as “the Yellow/Red Analysis”. That document sets out, in relation to each PD: i) Yellow highlighted text: text from the PDR which was quoted in the LOI; ii) Red highlighted text: text that was in the original PDR but which has been omitted from the passages quoted in the LOI.[66]So, for example in relation to PD 1.2, paragraphs (x)-(xiv) of PDR1 are in yellow as they are quoted in the LOI. Paragraphs (xv)-(xxvii) are in red: those paragraphs are not quoted in the LOI, but they are referred to in the introductory sentence of paragraph 15 of the LOI. Paragraphs (xxxvii)-(xxxviii) are part in yellow and part in red, illustrating that the LOI quoted only parts of the paragraphs of PDR1 to which paragraph 15 of the LOI referred.[67]The Yellow/Red Analysis was served prior to the end of closing submissions, which concluded on 16 May 2023. The Tribunal reserved judgment. As we have already indicated, it sent out its judgment and reasons on 12 February 2024.[68]On 13 November 2023 the Tribunal wrote to the parties. It said that the judgment was “at an advanced stage” but said this: Before finalising the Judgement, however, the Tribunal wishes to give an indication to the parties of its potential approach to one issue, upon which it believes the parties have probably already made submissions, but wishes to be sure that it has fully understood their positions before reaching its final conclusions. That issue is how the tribunal should approach the protected disclosures, (“the PD's”) and what material the Tribunal may, or may not, take into account in determining whether the claimant has made any protected disclosures.[69]The Tribunal said that the starting point was the LOI and the expressly pleaded references to numbered paragraphs in PDR1 and PDR2. It noted that the Yellow/Red Analysis pointed out that the LOI omitted to quote some of the paragraphs that the LOI referred to. However, in the course of deliberation, the Tribunal had come across parts of the PDRs which were not in the Red/Yellow Analysis but which, in the Tribunal’s view, the Claimant expressly relied on. They said: The Tribunal is proposing to consider, when determining whether any of the disclosures relied upon amount to protected disclosures, not only the expressly recited extracts from the relevant parts of the PDR's that are contained in the List of Issues, but also any additional parts thereof, and any other parts of the PDR's referred to, which are expressly relied upon, but which are not replicated in the body of the List of Issues.[70]The Tribunal flagged a particular issue relating to PDR3, which did not contain paragraph numbers. The LOI contained quoted extracts but did not contain paragraph cross-references. The Tribunal would need to consider whether it can or should take into account any other parts of PDR3, outside those paragraphs from which extracts are recited, when determining whether the expressly pleaded parts do or do not amount to any protected disclosures. The Tribunal’s view was that the Claimant appeared to accept that the Tribunal could consider the totality of the paragraphs expressly pleaded and cross-referenced material, because at paragraph 49 of his closing submissions, counsel had said: In the List of Issues, in the case of each PD relied upon, references made to the passages in the PDR which set out the information disclosed. It is important that the ET clearly understands that the List of Issues is not therefore the summary that appears at the start of each, but the passages that are set out and/or cross refer referenced within the PD.[71]The Tribunal asked for confirmation that its understanding was correct. It then went on to seek the parties’ views upon whether the Tribunal was confined to only the pleaded paragraphs “as expanded” or whether it could or should take account of other paragraphs of the PDs in the same document. It said this was particularly relevant to PD 3.5. It set out two paragraphs in PDR3 which did not appear in the Yellow/Red Analysis. It pointed out that the second paragraph included information which formed part of PD1.16. It asked whether the Claimant contended that the Tribunal was not entitled to consider these paragraphs as part of PD3.5 and, if not, why not?[72]The Tribunal invited further submissions on these issues or any other consequences that needed to be addressed, indicating it would assist the Tribunal if responses could be received within 14 days.[73]The Claimant’s solicitors responded by letter dated 27 November 2023. The letter is quoted at length at paragraphs 333-352 of the Reasons. The Claimant’s position was as follows. Where text was omitted from the quoted passages in the LOI, that is because it was not relied on by the Claimant; the Tribunal had misunderstood paragraph 49 of the Claimant’s written submissions. It said: The position of the claimant remains unchanged. The tribunal when it is considering the tests of “whether the information disclosed and any allegation contained in it, are substantially true” is confined to consider only the information relied upon as the disclosure and is confined therefore to considering only those paragraphs that are set out. It cannot take into account other material in the same document to determine whether the claimant made the qualifying and therefore the protected disclosure contended for. Similarly, when referring to the test under section 43B the reasonable belief can only be judged in reference to the quoted information. The claimant does not repeat his submissions on reasonable belief in this letter.[74]The Claimant went on to object to the Tribunal considering the two paragraphs to which it had referred in relation to PD3.5. The information in those paragraphs was not in the LOI; witness evidence and disclosure did not cover the issues; it would be necessary to hear further argument. Reference was made to oral submissions made on day 101.[75]The Respondent replied to the Tribunal’s 13 November letter on 27 November, agreeing with the Tribunal’s approach. The Claimant’s solicitors replied to the Respondent’s submissions on the same day. It reiterated its position that the LOI had been agreed, and the Respondent had failed to identify an issue as to what information had been disclosed. The Tribunal’s Reasons Structure
The Tribunal’s Reasons
[76]The Tribunal divided the Reasons into chapters; the structure is as follows.[77]After preliminary matters (Chapter I) and Background Facts (Chapter II), it set out its approach to the determination of protected disclosures in Chapter III. Having done so, it dealt with each PD in turn in Chapter IV. Those chapters are the crucial chapters for the purposes of all of the grounds of appeal bar Grounds 7 and 8.[78]In Chapter V, the Tribunal declined to make findings on the detriment claims. It was unnecessary to do, given that the Tribunal had found no protected disclosures had been made. It set out its reasons why it did not regard it as proportionate to determine the hypothetical claims. Essentially, the causation questions were complicated and would depend on which of the many protected disclosures were taken as having been established. Apart from the Claimant’s retirement, none of the alleged detriments gave rise to a financial loss. There is no challenge to that approach.[79]In Chapter VI, the Tribunal dealt with the constructive dismissal claim. It assumed, for the purpose of that claim, which protected disclosures had been made. It also assumed the pleaded repudiatory conduct (at Reasons paragraphs 2276-2335). It considered whether, on those assumptions, the facts relevant to the termination of the Claimant’s employment amounted to a constructive dismissal. The Claimant gave notice of retirement on 25 November 2016, and his effective date of termination was 31 January 2017. The Tribunal’s approach led it to determine three issues: i) Did the claim depend upon the Claimant establishing a “last straw” that led to his retirement; if so, was there such a last straw? ii) Did the Claimant affirm his contract? iii) Did the Claimant retire in response to the Respondent’s repudiatory breach, or did he intend to retire in any event?[80]The Tribunal found against the Claimant on all three issues. The Claimant challenges this in Grounds 7.1, 7.2 and 8.[81]In Chapter VII, the Tribunal concluded its reasons with some observations on the case as a whole.
Chapter III: The Tribunal’s approach to the protected disclosures
[82]The Tribunal noted at paragraph 224 that as the claims were finally presented, the case was put solely on the basis of the disclosures to the IPCC in January 2014, and solely on the basis of the contents of PDR1-PDR3. It noted that the Claimant did not claim that the entirety of the contents of PDR1-PDR3 constituted protected disclosures. It recorded that 19 PDs were relied on, four having been abandoned.[83]The Tribunal in due course considered each PD individually, but for the purposes of its Reasons, it grouped them together by subject matter into six groups. They were as follows, using the Tribunal’s descriptions at paragraph 253-275 of the Reasons. Under each heading, the Tribunal listed the relevant PDs. Here we set out only the six PDs that are in issue in this appeal. i) Group 1: Disclosures pertaining to TD/Supt Scally and cronyism; ii) Group 2: Disclosures relating to Operation Nixon, the alleged cover-up and lack of action against TD/Supt Scally; a) PD1.2: Decision by Supt Scally not to intervene to protect child; b) PD1.3: Cover up of failure to protect child; iii) Group 3 Disclosures pertaining to the failings of TD/Supt Scally and others in respect of the Operations related to Dale Cregan; a) PD 1.5: Release of Dale Cregan on bail; iv) Group 4: Disclosures relating to the conduct of T/Supt Snowball and the lack of action taken against him; a) PD 1.12: Unlawful use of bugging devices by DCI Snowball; b) PD 3.1: DCI Snowball allowing robbery in a public house to take place; v) Group 5: Disclosures relating to the promotion of DCI Worth and her alleged failings as an SIO; a) PD 3.5: Supt Worth’s failure to treat the death of a Hungarian man as other than accidental. vi) Group 6: standalone disclosures.[84]From paragraph 314 to 399, the Tribunal addressed the issue of what it was that should be regarded as the disclosures of information that formed the basis of the analysis under sections 43B and 43F. The reasoning covers thirteen pages. It referred to the difficulty arising from the Claimant having submitted three lengthy PDRs to the IPCC. It set out the history of the development of the case on PDs, including the exchanges during and after submissions to which we have referred above. It grappled with the fact that on the one hand very lengthy documents had been sent to the IPCC claimed to be whistleblowing disclosures; but on the other only specific passages from them were now relied on in the litigation as amounting to protected disclosures. It grappled with the way in which the pleadings and the LOI was set out (to which we have referred above).[85]Noting that the Claimant’s position was heavily reliant on the LOI, it said (paragraph 353) that it would start by considering the approach it should take untrammelled by the LOI and then would consider whether it should deviate from that approach because of the LOI.[86]In considering the first stage, the Tribunal quoted paragraphs 54 and 64 of the judgment of Linden J in Twist DX. Having considered those paragraphs, it said:[357]The Tribunal notes that whilst Linden J. uses the term “which is said to amount to the qualifying disclosure” in para. 54, he does not in para. 64. This Tribunal considers that its first task is to consider what information was disclosed, in totality, and not just focus upon what information was disclosed “that is said”, i.e. pleaded by the claimant, to amount to a qualifying disclosure.358. In some, indeed, many, instances this is not an issue, as the claimant’s pleaded case (i.e. as set out in the List of Issues) does, or at least appeared to, include contentions that he disclosed information in wider terms than have been expressly recited in the List of Issues. In others, however, the inclusion of some further material as part of the information conveyed leads to the inclusion, by reference or implication, of more information, which must then also fall to be considered in determining whether any particular protected disclosure has been made. Beyond that, however, may be other material which does not fall into either of these categories, but which the Tribunal considers must also be considered as forming part of the information conveyed, even if not expressly pleaded as information relied upon as forming part of the disclosure.359. Our conclusion is that the determination of what information was conveyed, and whether it amounted to any particular protected disclosure, is a matter for the Tribunal alone, which cannot, absent any other reason to do so, be circumscribed by the claimant choosing not to rely on any particular part of the information that the Tribunal may go on to find was in fact part of the information that he conveyed as part of his disclosure. That this must be so is apparent from the provisions of s.43F, s.43G and s.43H of the ERA, which apply to third tier and above disclosures, all of which require a whistleblower to show that at the time they made the disclosure they reasonably believed that the information disclosure and any allegation contained in it are substantially true. If, therefore a worker could, despite conveying certain information in the course of making disclosures, in the non – legal sense of the word, in which they lacked the necessary reasonable belief, avoid the consequences of that lack of belief by not relying upon that information or allegation as part of their disclosure, they would be able to circumvent those provisions by “filleting” as it has been put by the respondent their disclosures. Whilst the respondent has suggested that this may be why the claimant has taken this approach, the Tribunal does not so find, and, frankly it does not matter why he has done so. The logic of this conclusion leads the Tribunal to find that it cannot be restricted in its enquiry as what information was conveyed in the disclosures that were made by the claimant only to those matters upon which he expressly relies in support of his contention that any particular disclosure was protected. As ever, that approach must be tempered by common sense and proportionality. The Tribunal, when considering whether the claimant has made any particular protected disclosure, must look at the information that was conveyed, in context and in the round. Clearly, were the Tribunal to start bringing in unconnected extraneous information, with no apparent nexus to the disclosure relied upon, that would be impermissible. As will be apparent, however, the Tribunal has approached its task by considering very carefully the information disclosed, how it was disclosed, and how it should be read.[87]At paragraph 360, the Tribunal referred to the Yellow/Red Analysis. The Tribunal said that whilst it was produced late in the proceedings, the Claimant’s counsel had an opportunity to respond to it but did not do so in specific terms, beyond disputing the Respondent’s entitlement to “aggregate” the omitted parts of the PDRs with those that had been pleaded.[88]The Tribunal then carried out a further analysis of the evolution of the pleadings and the LOI, before reaching its conclusion on the information that it would take into account, subject to the List of Issues point. It said:381. To the extent that the claimant in this case seeks to limit the Tribunal to the pleaded case on what information was conveyed, the Tribunal questions whether he can do so. It seems to us a necessary corollary of the aggregation line of cases that if the Tribunal is satisfied that the claimant disclosed information, as part of the disclosure relied upon, which included information not expressly pleaded as information relied upon, the Tribunal is entitled to consider that information as well, even if the claimant did not seek to rely upon it as part of his protected disclosure. That must, the Tribunal considers, be the position, as otherwise, a whistleblower would be able to circumvent the provisions of s.43F, whereby he is required to show a reasonable belief in the information conveyed and any allegation contained in it, by simply excising parts of the information conveyed in which he may not be able to satisfy that test.382. In the alternative, the Tribunal considers that it is entitled to examine the parts of the PDRs not expressly relied upon in the List of Issues as being relevant context in which to assess the reasonableness of the beliefs of which the claimant has to satisfy the Tribunal under s.43B and s.43F.383. In summary and conclusion therefore, in determining whether the claimant made any protected disclosures the Tribunal will, subject to the List of issues point, consider: a) The information expressly pleaded and recited in the List of Issues as having been conveyed;384. Where in the List of Issues reference is made to complete paragraphs, which had not been recited in full in the List of Issues, and/or where any ellipsis appears to indicate any omission, the omitted information will also be considered;385. Where, whether in the recited information, or that to be considered by virtue of (b) above, reference is also made to any other information by reference to any other part of the PDR document (e.g. Section H), that information shall be considered too as forming part of the information conveyed;386. To the extent that any unenumerated paragraphs have been pleaded and recited in the List of Issues taken from PDR 3, where the pleaded paragraph has been incompletely set out, the omitted words will be considered as forming part of the information conveyed;387. To the extent, that whilst not expressly pleaded, or partly pleaded, in the List of Issues as forming part of the information conveyed, any preceding or ensuing paragraphs in PDR3 which are inextricably linked to the pleaded information conveyed in any PD under PDR3 will also be considered as forming part of the information conveyed, or, in the alternative, the context thereof.[89]It then considered the effect of the agreed LOI on this conclusion at paragraphs 387-399. It directed itself as to authorities dealing with the status and effect of a list of issues in the Employment Tribunal, including (among others) Chandok v Tirkey [2015] IRLR 195, Parekh v London Borough of Brent [2012] EWCA Civ 1630 and Mervyn v BW Controls Ltd. [2020] IRLR 464.[90]It identified the key principle as deriving from Mervyn: it will be unusual for the Tribunal at a final hearing to depart from a list of issues agreed at the case management stage, but there is no requirement of exceptionality for such a departure; the question is whether it is necessary in the interests of justice to do so. It referred to guidance from Mervyn, at paragraph 38, as to relevant considerations when considering whether it is in the interests of justice to depart from an agreed list of issues.[91]It then stated its conclusions as follows:397. A further consideration must be what the parties agreed when they agreed the List of Issues. It was an overdue document, not produced until after the hearing had started. The ellipses in the text of the disclosures referred to were not readily apparent. In some cases there are swathes of omitted whole paragraphs, in others only a word or a line was omitted. The respondent’s yellow/red Analysis document shows where this occurs. It may be that neither party quite realised what the effect of the List of Issues being set out in this way would be.398. As the caselaw makes clear, departure from an agreed List of Issues does not require exceptional circumstances. The test is whether it is in the interests of justice to do so. All the factors set out in Mervyn (which doubtless are not intended to be exhaustive) need to be considered. The List of Issues was agreed, and that carries a lot of weight. What that agreement meant, however, is open to argument, and even the claimant’s position on what can and cannot be considered part of the information conveyed has not been clear or consistent. The departure, if such it be, is late, but the parties have been given an opportunity expressly to make representations upon it, and have done so. The claimant has submitted that the Tribunal should not allow such a departure because the claimant has prepared his case on the basis of the “narrow” construction of the List of Issues, and it would be unfair for him now to be faced with a wider set of issues, covering evidential matters that have not been considered, and matters which would require further evidence and documents.399. We do not agree. The claimant has identified no specific areas where consideration of the further material as information contained in the disclosures has not been dealt with in the evidence, or where the claimant would be prejudiced by the inclusion of this material. He was extensively cross – examined upon not only the expressly pleaded disclosures, but virtually all of the wider material that was contained in all his PDRs, regardless of whether they were being expressly relied upon as part of the pleaded disclosures. The claimant has not identified any specific aspects where he can say he would be prejudiced because he did not cover these matters in his evidence (which was itself very wide ranging) or in cross -examination. The Tribunal’s view is that there are no such instances, but, if there are, they are very few, and minor, and the Tribunal will be alert to them as it considers each disclosure separately. In principle, the Tribunal considers that departure from the List of Issues, to the extent that the Tribunal proposes to do so, would be in the interests of justice as it would enable the Tribunal to carry out its prime function of determining what information was conveyed, and then whether, in the circumstances, any protected disclosure is thereby established.[92]The Tribunal then went on to direct itself as to the tests to be applied in determining whether any disclosure was a protected disclosure, at paragraphs 400 to 432. Three cases cited are particularly relevant for the purposes of the appeal: Muchesa v Central & Cecil Housing Care Support EAT/0443/07, Korashi (citation above) and Simpson v Cantor Fitzgerald Europe [2020] ICR 695. Those cases are relevant to Grounds 3,4, 5 and 6. As those grounds turn, to a large extent on the application of those cases to the particular facts, we will address them further under those grounds.
Chapter IV: Findings on the disclosures
[93]The Tribunal began this chapter with findings as to the credibility of the Claimant’s evidence. It addresses a number of attacks on the Claimant’s credibility by the Respondent. In concluding that section, the Tribunal’s view of the Claimant’s evidence was nuanced:530. The Tribunal considers that, whilst perhaps with mixed intentions, and to advance what he saw as his cause of righting the various wrongs that he considered had been perpetrated all around him, his perceptions and communications have on occasion been influenced by his passion. His sense of injustice in terms of his personal treatment, and in the wider sense, has come with the expense of balanced examination and accurate onward communication of information that he had received. That is a charitable view, but there is another, which is less benign, and inclines to a conclusion that the claimant, on occasion, has deliberately sought to mislead the Tribunal in some parts of his evidence.531. We would not go that far, but for a number of reasons, which are set out in more detail in the discussions below, the Tribunal has found that the claimant’s evidence on many aspects of his claims is simply not reliable. The Tribunal then went on to deal with each of the PDs in turn. It found that none of the PDs were protected disclosures. For the purposes of this judgment, we need consider only the six in issue in the appeal. For current purposes, it is sufficient to set out the structure of the Tribunal’s reasoning by reference to PD 1.2. We will consider the specific reasons in relation to the six appealed PDs under specific grounds of appeal below.[94]The Tribunal went on to consider each PD in turn and at length. For example, the consideration of whether PD 1.2 constituted a protected disclosure alone takes nearly 21 pages of the Reasons. The structure of this part of the Reasons, in relation to PD 1.2 is as follows; the Tribunal followed the same structure in respect of each of the PDs. i) The Tribunal set out the information disclosed, including both the yellow and the red text from the Yellow/Red Analysis. ii) The Tribunal then set out relevant factual findings in relation to this disclosure, at paragraphs 774-844. iii) At paragraph 847-855, the Tribunal summarised the information disclosed and the allegations contained within it. It found that the information conveyed by the Claimant was as summarised in the LOI; but it noted that that information appeared under the heading “When cronyism goes badly wrong! Operation Nixon”. It further noted that this repeats the information and allegation in PD 1.1: that TD/Supt Scally had been promoted as a result of cronyism. It then set out the information and allegations contained in this PD, summarising it into seven propositions. iv) The Tribunal turned next to whether the Claimant had a reasonable belief that the information disclosed tended to show a relevant failure. It dealt with each of the alleged relevant failures in turn: that a criminal offence had been committed; failure to comply with a legal obligation (breach of the duty to protect the public and breach of article 2 ECHR); risk to health and safety. v) The Tribunal then considered whether the Claimant had a reasonable belief that the disclosure was in the public interest. vi) The Tribunal then went on to consider whether the Claimant satisfied the s.43F test. It did this in respect of each PD, regardless of whether it had found that the disclosure satisfied the s.43B test. In PD 1.2 the Tribunal found that the disclosure did not satisfy the test for s.43B or s.43F. That was the case in relation to four of the six PDs subject of appeal.[95]Having gone through the 19 PDs, the Tribunal reached the conclusion that the Claimant had made no protected disclosures. As we have indicated, it declined to decide the detriment issues and went on to deal with Constructive Dismissal in Chapter VI. It found against the Claimant on each of the questions it determined (last straw, affirmation, causation). We will return to the detail of its reasons under Grounds 7 and 8 below.
The Grounds of Appeal
[96]We will address the grounds in the order they were presented to us, which is not quite the same as the order in which they are numbered in the Grounds of Appeal.
Grounds relating to the six protected disclosures
[97]Grounds 1, 2 and 6 relate to all six PDs under appeal. i) Ground 1: alleges a material procedural error in expanding the disclosures beyond the LOI to include expanded material derived from the PDRs. ii) Ground 2: alleges that it was an error of law to expand the disclosures beyond the LOI, by aggregating the passages in the LOI with the expanded material. iii) Ground 6: alleges that the Tribunal erred in its approach to how much of the disclosure must be believed in order for the information and allegations to be believed to be substantially true.[98]There is a further, unpleaded, ground which was subject of an application to amend on the last day of the appeal hearing.[99]Grounds 3 and 4 relate only to PD 1.2, PD 1.3 and PD 1.5. Both allege an error in the way in which the Tribunal dealt with delay and conduct as factors in assessing the Claimant’s reasonable belief. i) Ground 3 relates to reasonable belief in what the information disclosed tends to show. ii) Ground 4 relates to reasonable belief that the disclosure was in the public interest.[100]Ground 5 relates only to PD 3.5. It alleges that the Tribunal applied too high a bar for reasonable belief under s.43B.[101]Ground 9 alleges that the Tribunal took the wrong approach to the credibility of the Claimant’s evidence.
Grounds relating to constructive dismissal
[102]Ground 7.1 alleges errors in the approach to the last straw doctrine.[103]Ground 7.2 alleges errors in the approach to affirmation.[104]Ground 8 alleges errors in the approach to whether the Claimant resigned in response to a repudiatory breach. Ground 1: Procedural Irregularity in the approach to the scope of the Protected Disclosures.[105]In Ground 1, the Claimant alleges that there was a serious procedural irregularity in the Tribunal departing from the disclosures set out in the LOI, either at all or at a late stage in the proceedings. This overlaps with but is distinct from Ground 2, which claims that the Tribunal erred in law in departing from the LOI, and from the disclosures as identified by the Claimant. In this ground, we consider only the procedure adopted by the Tribunal in reaching the decision to include, as part of the information disclosed, more of the PDRs than the passages quoted in the LOI.[106]The Claimant argues that the LOI was agreed and there was no basis to depart from it as identifying the issues to be determined. The expansion of the information that formed part of the disclosure came after the end of the evidence, so that the Claimant was not properly able to address it and did not know what was being taken into account until it received the Reasons.[107]It is important to distinguish between two separate phases of “expansion” of the information that was to be treated as part of the information disclosed. First, the expansion to include the red text in the Yellow/Red Analysis. Second, the expansion to include additional paragraphs from the PDRs that were not included in the Yellow/Red Analysis.[108]As to the red text, we find that there was no procedural irregularity, and no unfairness to the Claimant, in treating the red text as part of the information disclosed. i) All of the red text appears in the PDRs; it was part of what the Claimant had submitted to the IPCC. He had, in the PDRs, identified it as part of his protected disclosure for which he claimed to be entitled to whistleblower protection. From the outset of the proceedings, it can scarcely have been a surprise to the Claimant that he would need to address the questions of his reasonable belief in the content of his PDRs. ii) In the CGoC, the Claimant had, in some passages at least, relied compendiously upon the PDRs. iii) The red text derives from paragraphs that are specifically referred to in the LOI as containing the PDs. iv) Although the Claimant attaches much weight to the fact that the LOI was agreed, it was not agreed by the Respondent until 1 December 2022. That was a month after the liability hearing started, and only the day before the Claimant started to give evidence. Self-evidently, the Respondent’s agreement to the LOI cannot have affected the preparation of the Claimant’s witness evidence, the documents disclosed by the Claimant, nor the disclosure he requested from the Respondent. v) The Tribunal found that the material had been addressed in cross-examination. There is no basis to suggest that the Tribunal was wrong, as a matter of fact, in so holding. vi) The thrust of the Respondent’s point (that the Claimant could not “fillet” out only parts of his PDRs) had been raised by the Respondent in its June 2022 submissions, during the course of the evidence. It did not prompt a reaction from the Claimant, neither to seek a ruling that the Respondent’s approach was impermissible, nor to adduce further evidence. vii) The Yellow/Red Analysis was produced in May 2023, before the end of closing submissions. The Claimant had the opportunity to address the red text in closing submissions. The Claimant had the opportunity to have argued that further evidence would be necessary, either by additional disclosure, or by way of witnesses being recalled. Those points too do not appear to have been made. Even after closing submissions, given that the judgment was not produced for a further 9 months, the Claimant could have addressed the matter further. This was a case that had been fought at scale: it already occupied a vast amount of tribunal time and had been bristling with issues that needed to be determined alongside the evidence. No stone had been left unturned. We have no doubt that if the Claimant thought there were further evidential matters to be raised in the light of the Yellow/Red Analysis, he would have raised them, either in closing submissions or thereafter. viii) Although the Claimant submits in this appeal that he was deprived of the opportunity to address further evidence to the red text, there was little, if any, indication of what further ground could have been covered, or what evidence there might be. We are left with the conclusion that the prospect is more theoretical than real. ix) The red text is closely related to the yellow text. This is not surprising, as both sets of text appear in the same documents drafted by the Claimant; often in consecutive paragraphs, often in the same paragraph. Both sets of text are referred to in the LOI. Clearly the Claimant thought they were closely related. We will deal under Ground 2 with the extent to which they were inextricably linked. In this ground, it is sufficient to say that the passages are sufficiently intertwined that it was not unfair to require the Claimant to deal with both.[109]The position regarding the Tribunal’s 13 November 2023 letter is somewhat different, but it does not lead to a different conclusion. There is some force in the Claimant’s point that this was a late stage at which to seek clarification. There would be some force in the Claimant’s point that it would be unfair for the parties not to know, until judgment, which additional passages from the PDR were to be taken by the Tribunal as forming part of the information disclosed for the purpose of s.43B.[110]On the other hand, the Tribunal’s letter merely picked up on a point long made by the Respondent, that the Claimant could not pick and choose which parts of his own PDRs formed part of his disclosures, and there were passages in the PDRs which were directly relevant to the passages expressly relied on by the Claimant.[111]In the event however, the Tribunal did not decide the case on the basis of treating hitherto unidentified passages of the PDRs as part of the PDs. Having compared the Yellow/Red Analysis to the information identified in the Reasons, the only one of the six PDs which goes beyond the Yellow/Red Analysis is PD 3.5. The Tribunal’s approach to extra material in the 13 November letter has no bearing on the other five PDs which are the subject of this appeal.[112]As to PD 3.5, the Tribunal included in the “information disclosed” two paragraphs from PDR3. Those two paragraphs are expressly identified in the Tribunal’s 13 November letter. They are as follows: As a result a murderer is free to walk the streets of Manchester, perhaps to strike again. I understand T/Supt Worth has blamed her mismanagement of the case on her lack of training and not being PIP 3 accredited. I find this hard to accept when her last 3 roles have been as a detective and I and many other SIOs have dealt with numerous murders and ‘critical incidents’ prior to becoming PIP 3 accredited. On a daily basis unaccredited DIs and DCIs with far less experience make decisions on persons found deceased in a variety of circumstances. I understand no action has been taken in respect of T/Supt Worth. The murder T/Supt Worth wrote off as not being suspicious is ironically now being investigated by another officer who was unsuccessful in the recent promotion process and is having to pick up the pieces following T/Supt Worth’s failings. … It cannot be ignored that DCI Worth is a very close friend of CS Sheared (sic) the Head of Workforce Development who has been involved in setting up the Promotion Process. It is CS Sheard who in her short time as ACC promoted DCI Worth to temporary Superintendent; this was at a time when another officer had been promised that he would be next to be given an acting superintendent position. Furthermore, CS Sheard, when previously the officer’s Divisional Commander had rewritten for her a poor appraisal which had been completed by T/Supt Worth’s line manager, as referenced in my whistleblowing report. The officer’s current daily work colleague is CS Hankinson, one of the main interviewers in the process. Although nothing can be proved there was widely held suspicions that this officer would be better ‘informed’ and ‘prepared’ on her attendance for interview than other candidates. The officer's success certainly did not come as a surprise to anyone.[113]The statement that “As a result a murderer is free to walk the streets of Manchester, perhaps to strike again” is a conclusion that flows directly from the passages the Claimant relies on as PD 3.5. The allegations of cronyism and over-promotion of an incompetent officer were, of course, the central thesis of the Claimant’s PDRs.[114]The Claimant had the opportunity to make further submissions in relation to the two additional paragraphs. He did so. As with the Yellow/Red Analysis, had there been additional evidence the Claimant regarded as relevant to the additional passages, we have no doubt that the Claimant could have identified it even at this late stage. The two additional paragraphs were closely related to the remainder of PD 3.5, and indeed, to other PDs upon which the Claimant relied. There was no challenge to the Tribunal’s view (expressed in the 13 November letter) that the second of the two paragraphs included information which was relevant to PD 1.16. There is no injustice to the Claimant in being required to demonstrate his reasonable belief in the requisite statutory matters in relation to those paragraphs.[115]In all the circumstances, the Claimant had a fair opportunity to address the “expanded” information. The Tribunal did not err by departing from the LOI in the way we have described. There was no error of law in its treatment of the status of the LOI. It was entitled to form the view that it was in the interests of justice to do so.[116]Accordingly, we reject the argument that there was a material procedural irregularity. The appeal fails on Ground 1.
Ground 2: aggregation of information by the Tribunal to identify the disclosures
[117]Ground 2 argues that the Tribunal erred in its identification of the “information disclosed” for the purposes of s.43B. Quite apart from the procedural issues in Ground 1, it is alleged that it was wrong as a matter of principle for the Tribunal to expand upon the particular passages relied on by the Claimant in the LOI.[118]The Claimant’s case is that it is for the Claimant to identify the information he relies on as forming his protected disclosure, not the Tribunal. The Claimant accepts that it would be permissible for the Tribunal to look at material outside the “information disclosed” as context in assessing the Claimant’s requisite belief in the information he relies on; but it is impermissible to subject information other than that relied on by the Claimant to the requisite belief tests in s.43B and s.43F. Here, it is argued, the Claimant did the latter. For example, in PD 1.12, it was in fact true that DCI Snowball bugged the office of senior officers, so context could not affect the reasonable belief of the Claimant in that fact. The Tribunal did not find that the Claimant lacked the requisite belief in the bugging allegation; it found that expanded information, not relied on by the Claimant in the LOI, was part of the disclosure, and he did not have the requisite belief in the information in the expanded disclosure.[119]The Claimant argues that his approach is consistent with the low bar that is set for establishing protected disclosures, and with the statutory purpose of protecting whistleblowers. Ms Moss gave a hypothetical example in submissions to illustrate the dangers of “aggregating” information in disclosures. A discloser could send an email which(a) contains information about an impending environmental disaster, and(b) contains information that their boss is having an extra-marital affair. The danger of aggregation is that if the discloser does not have the requisite belief in (b), the whole disclosure may be unprotected, even if they have the requisite belief in (a). The Claimant argues that in that situation (a) should itself be a protected disclosure, without reference to (b).[120]The opposite risk, identified by the Respondent, is “filleting”: a discloser may make a series of allegations in respect of which he does not have the requisite belief, but a tiny part of it, taken in isolation, may be a protected disclosure. The Claimant argues that there is nothing wrong with that, and the mechanism to control this is at the causation stage: the smaller the portion of a disclosure that is protected, the harder a claimant’s task will be to demonstrate that he was subjected to detriment on the grounds of the protected disclosure, rather than on grounds of other parts of the disclosure. To the extent that a Claimant chooses to narrow the disclosure he relies on, he takes the risk that he will fail on causation.[121]The Claimant relies on passages from four authorities for the proposition that it is for the Claimant alone to decide the parameters of the information disclosed upon which he relies.[122]First, paragraph 41 of the judgment of Sales LJ Kilraine v Wandsworth LBC [2018] ICR 1850: It is true that whether a particular disclosure satisfies the test in section 43B(1) should be assessed in the light of the particular context in which it is made. If, to adapt the example given in the Cavendish Monro case [2010] ICR 325, para 24, the worker brings his manager down to a particular ward in the hospital, gestures to sharps left lying around and says “you are not complying with health and safety requirements”, the statement would derive force from the context in which it was made and taken in combination with that context would constitute a qualifying disclosure. The oral statement then would plainly be made with reference to the factual matters being indicated by the worker at the time that it was made. If such a disclosure was to be relied upon for the purposes of a whistleblowing claim under the protected disclosures regime in Part IVA of the 1996 Act, the meaning of the statement to be derived from its content should be explained in the claim form and in the evidence of the claimant so that it is clear on what basis the worker alleges that he has a claim under that regime. The employer would then have a fair opportunity to dispute the context relied upon, or whether the oral statement could really be said to incorporate by reference any part of the factual background in this manner.[123]That does not seem to directly address the question in this appeal. It is one thing to say that a claimant should plead the facts and context which they say affect the meaning and content of a written disclosure, or which contain facts that are to be incorporated by reference into the disclosure. It is quite another to say that a claimant is entitled to fillet out parts of a written disclosure to which the statutory tests are to be applied.[124]Moreover, the paragraph needs to be seen in the context of what the appeal was about. The tribunal struck out parts of claim relating to two alleged protected disclosures, on the ground that they did not amount to disclosures of information but only amounted to allegations and so were not qualifying disclosures for the purposes of s.43B. The EAT and the Court of Appeal dismissed the claimant’s appeal.[125]Sales LJ’s judgment (with which Kitchin LJ agreed) considered the concept of “information” in s.43B, and the relationship between “information” and “allegations” – it being alleged that the tribunal had erred in drawing a rigid dichotomy between the two. The core reasoning of the judgment (as identified in the headnote to the report) is at paragraphs 35-36. There are two essential propositions: i) In order for a statement or disclosure to be a qualifying disclosure under s.43B(1), “it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1).” ii) “Whether an identified statement or disclosure in any particular case does meet the standard will be a matter for evaluative judgment by a tribunal in the light of all of the facts of the case.”[126]The Court of Appeal then went on to consider the two disclosures in issue in the appeal. Those were, respectively, in a letter and an email. It is clear from Sales LJ’s summary of the factual background that by the time of the appeal the appellant’s case focussed on particular passages of those documents which, it was said, should have been found to be protected disclosures. At the appeal hearing, the appellant sought to widen out the argument to other passages; the Court of Appeal refused to allow that because it was too late and the respondent was not on notice of the point (see paragraphs 15-18).[127]Paragraph 41 appears in a passage (paragraphs 38-42) where Sales LJ considered, and rejected, an argument that Langstaff J in the EAT had erred by taking too narrow an approach to one of the alleged disclosures. It was said that he failed to consider that the disclosure should be taken to incorporate facts contained in a wider series of communications (paragraph 39). Sales LJ rejected that argument at paragraph 40. Paragraph 41, quoted above, was part of his reasoning. He went on in paragraph 42 to say that the claimant had not properly identified the context which was said to supply the relevant factual content, in the tribunal, the EAT or the Court of Appeal. Langstaff J had therefore not erred.[128]None of this is of assistance in determining the issue in this ground of appeal. Nor do the three further cases relied on by the Claimant.[129]Twist DX. The tribunal had refused a preliminary application to strike out claims on the basis that there was no reasonably arguable case that the claimant’s written disclosures amounted to protected disclosures. Linden J in the EAT decided that the tribunal had erred. At paragraph 49 Linden J set out the questions which arise under s.43B(1). The first of those “what, information, if any was disclosed” was addressed at paragraphs 52-63. Ms Moss relies on paragraph 52: The first stage is to identify the information disclosed by the worker which is said to amount to the qualifying disclosure. This is crucial because section 43B(1) requires the tribunal to go on to consider whether the claimant's beliefs about that information fell within the section and, if the conclusion is that there was a qualifying disclosure, whether the disclosure of that information was a, or the, reason for the treatment complained of, depending on whether the complaint is victimisation contrary to section 47B of the 1996 Act, or automatic unfair dismissal contrary to section 103A.[130]Ms Moss argues that this paragraph indicates that it is for a claimant alone to identify the disclosure of information he relies on. It is said that is clear from the “which is said to amount to the qualifying disclosure”: that means which is said by the claimant. We do not think this phrase can bear the weight Ms Moss places on it. First, Linden J went on in paragraph 57 to say, by reference to Kilraine, that even in a written communication case, evidence as to context may be relevant in deciding whether “information” was disclosed. Second, as in Kilraine, the matter in issue was whether the disclosure relied on by the claimant contained sufficient factual information to satisfy the s.43B(1) test. In paragraph 108, Linden J held that the tribunal had not sufficiently applied its mind to what information, if any, was disclosed in the communications relied on by the claimant. The tribunal did not refer to whether the disclosures “had sufficient factual content or specificity to be capable of satisfying section 43B(1)”. The case did not concern the selection of the disclosed material that was to be subjected to the s.43B(1) test, nor the question of who gets to decide upon that selection.[131]Norbrook Laboratories (GB) Ltd. v Shaw [2014] ICR 540. The appeal was by the employer against a tribunal’s decision that three emails sent by the employee, taken together, amounted to a qualifying disclosure. One of the arguments raised on appeal was that the tribunal erred in finding three protected disclosures when the employee had only identified one email as the protected disclosure (paragraph 17). It was argued that the employee should have been held to his pleaded case, which relied on that one email. At paragraphs 23-24, the EAT noted the principle that a tribunal can only determine the claims before it; but it went on to find that it was clear from the claim form that the employee relied on the two further emails and that became clearer from his witness statement. The EAT held that, on the facts, the tribunal did not err in considering the three emails together. The case did not deal with the issue in this case – where a claimant chooses to rely on less than the totality of the document that contained the disclosure.[132]Simpson v Cantor Fitzgerald Europe. We were taken to the EAT’s decision at [2020] ICR 236. We were also provided with the Court of Appeal’s decision at [2020] EWCA Civ 1601, which dismissed an appeal from the EAT’s decision. Nothing turns on that later decision. The tribunal had considered 37 separate alleged communications which were said to constitute three or four separate disclosures. The tribunal dismissed the claim, finding that none of the disclosures were protected. On appeal, the claimant argued, among other grounds, that the tribunal had erred in failing look at the composite picture or to aggregate the separate disclosures. At paragraph 31, Choudhury J said: The question of whether or not two or more communications considered together amount to a protected disclosure is a question of fact: see [Norbrook], para 22. In the present case, the tribunal found that none of the 37 separate alleged disclosures identified amounted to a protected disclosure. The question is whether the tribunal erred in failing to consider whether some or all of them taken together might have done so.[133]Ms Moss relied on paragraph 33: In his skeleton argument, Mr Reade appeared to be submitting that the tribunal should have aggregated all of the communications relied upon in order to consider their collective status and effect, and relies upon the fact that the claimant’s closing submissions below did invite the tribunal to consider aggregation. I have been taken to the relevant passages in those closing submissions. Whilst they refer to the Norbrook decision and the fact that a protected disclosure may span a number of interactions where the whole is a protected disclosure, there is very little, if anything, in the submissions identifying which of the many communications relied upon are to be taken together in order to found a particular disclosure. As Ms Mayhew puts it, the claimant did not identify when he claimed that the various disclosures “crystallised” into a qualifying disclosure. The need to identify the combination of communications relied upon, and the specific protected disclosure to which that combination gives rise, is not academic; it is a basic requirement in such claims. Specificity in relation to the disclosures relied upon is important because without such specificity, it may be very difficult for the tribunal to answer the further questions which arise in such cases, namely whether or not (in a dismissal case) the reason or principal reason for the dismissal is that the employee made a protected disclosure.[134]In the following paragraph 34, Choudhury J said: In my judgement, the tribunal did not err in not aggregating the 37 communications in order to consider whether they amounted to a protected disclosure. There was no clear submission that it bought to do so, and, in any case, there is no obvious link between the disparate communications so as to render it perverse for the tribunal not to have taken all of them together.[135]It is obviously right that one thing a claimant must do is identify its case. However, it is clear that the EAT in Simpson was not considering whether a claimant has the right to choose which parts of a disclosure he relies on as forming part of his case. It is one thing to say it would be a failure on the part of a claimant not to identify the disclosures relied on. It is quite another to say that a claimant has a unilateral right to select what extracts from a disclosure he relies on. Further, paragraph 31 makes clear that the identification of the disclosures was a question of fact; so too does paragraph 34 by its reference to the perversity test.[136]None of these cases are authority for the proposition the Claimant seeks to derive from them. None of them were addressing the issue in this case, and we are wary of attaching weight to the phrasing of passages of the judgments where the EAT was dealing with different issues. Neither the statute itself, nor authority, answers the question raised in this ground of appeal.[137]There is some force in the Claimant’s general point, that if a Tribunal broadens out the “information disclosed” in which the Claimant must have the requisite beliefs, there is a risk that a discloser is not protected in respect of something within the disclosure which would meet the statutory tests. We bear in mind that whistleblowers can perform a valuable public function, notwithstanding that they may, in their nature, be prone to overstate their case, or make more claims than can be sustained. We bear in mind that the bar to establish a protected disclosure is a relatively low one, and there is a public interest in protecting whistleblowers.[138]However, the bar, although low, must still be met. Further, for the purposes of s.43F (and s.43G) there is another public policy, as set out in Korashi, which we have addressed above. That policy may be in tension with the first. If a person is going to make a disclosure to a prescribed person (or to another external person), the scheme of the statute requires them to have a reasonable belief that the information they disclose and any allegations contained within it are substantially true. The legislator recognised the need for a higher level of belief in disclosures to external persons. That, one can only assume, is to guard against the harm that may be caused by disclosures being made irresponsibly and without adequate foundation. The Claimant’s approach would allow him to fillet, or cherry pick, a small part of his disclosure, without the remainder of what he disclosed being subject to the s.43F test.[139]The Tribunal considered in detail the question of whether it should go beyond the paragraphs quoted in the LOI at Reasons paragraphs 314-399. The central reasoning is at paragraphs 359 and 383-387 which we have set out above. The test the Tribunal set itself was entirely appropriate. Its approach was “tempered by common sense and proportionality”. When considering whether the Claimant made a protected disclosure, it looked at the information that was conveyed in context and in the round. It directed itself that it would be impermissible to bring in extraneous information with no apparent nexus to the disclosure relied on.[140]The Tribunal did not take the approach that the Claimant had to show the requisite beliefs in the whole of the PDRs. It did not take the approach that if one PD failed the statutory tests then all did. It rejected the Respondent’s argument to that effect. It did not bring into consideration large parts of the PDRs which were not directly related to the 19 PDs. In respect of each of the 19 PDs, it examined those PDs in context and in the round. It considered each in turn, considering what passages of the PDRs, beyond the yellow text, formed part of the same disclosure. It analysed what information the PD, in its context, disclosed and then applied the statutory tests as to the requisite beliefs. There was no error in that approach.[141]In the context of this case, the Claimant’s argument has an air of unreality. i) The 19 PDs relied on by the Claimant all derive from the 3 PDRs that he had sent to the IPCC. ii) Although subsequently identified as separate PDs, the 19 formed part of a single narrative in his PDRs. The specific points raised in individual PDRs were examples which supported the broader narrative. At the very beginning of PDR1, the Claimant sought whistleblower status in respect of the PDR as a whole. iii) The AGoC relied on the PDRs. iv) The LOI, as we have set out above under Ground 1, expressly referred to red text paragraphs of the PDRs. Of the six PDs in this appeal, only PD 3.5 went beyond the red text.[142]The unreality of the Claimant’s approach can be demonstrated by example. The Claimant argues that the Tribunal’s expanded approach widened the disclosures relied on by the Claimant “almost beyond recognition”. PD 1.3 serves as an example.[143]The yellow text in the LOI quotes three paragraphs from PDR1. Those include: i) ACC Sweeney and DCS Shenton commissioned a review of Operation Nixon, but the terms of reference did not include the incident with the 13 year old boy. ii) The review team was not briefed about the 13 year old boy incident. None of the officers engaged in the operation were interviewed. iii) The commissioning of the review outwardly gave the impression that the officers’ concerns had been acted upon. The review report was favourable, but the child safeguarding issue was not addressed.[144]While these paragraphs raise the issue that the child safeguarding incident was not investigated, they do not engage with the question of why that was. The high-water mark of the allegation is perhaps implied within the last paragraph where it is said that the “commissioning of the review outwardly gave the impression that”, possibly suggesting that something more sinister than a mistake had occurred in the terms of commissioning of the review.[145]The Tribunal considered two red text paragraphs that were not quoted in the LOI but were referenced in paragraph 20 of the LOI “PD 1.3 was set out at (xxix) to (xxxiii) of PDR1”. Paragraphs (xxix) and (xxxiii) read: The questions that have to be asked are:
“why were the review team not made aware of the incident with the boy?”
And did “ACC Sweeney and DCS Shenton deliberately divert the review team away from TD/Supt Scally’s failings and misconduct by not informing them of the incident?” The actions of ACC Sweeney and DCS Shenton amount to a cover up of TD/Supt Scally's actions; On a point of law if this were proven there then they may have conspired to pervert the course of justice and it is requested that their actions should also be subject of an independent investigation and again a file should be submitted for consideration by the Crown Prosecution Service.[146]It is wrong to suggest that the Tribunal erred in law in regarding these paragraphs as part of the information disclosed. i) The thrust of the complaint in this passage of PDR1 is that there was a cover up. The PD appears under the heading “Review of Op Nixon – A cover up!)”. These paragraphs contain the thrust of the allegation of cover up; the “yellow text” paragraphs merely point to omissions in the investigation. The Claimant was not complaining that someone had made a mistake in the scope of the investigation – he was complaining that there was a deliberate cover up. ii) Even the LOI makes this clear. PD 1.3 is introduced with the heading “cover up of failure to safeguard a child”. Paragraph 19 alleges that the incident with the child was covered up by ACC Sweeney and DCS Shenton. Paragraph 22 raises the question, among others, of whether the information disclosed tended to show that the offences of perverting the course of justice or misconduct in public office had occurred. None of this makes any sense without the red text paragraphs.[147]In relation to each PD, the Tribunal considered what information the Claimant disclosed applying the approach it set out at paragraph 359. It considered the passages the Claimant wished to rely on from the PDR in the context of those paragraphs around those passages (for the most part, referred to in the LOI) as being part of the same disclosure of information. We have considered each of the six PDs under appeal. It cannot be said that any of the expanded material was extraneous, nor that the Tribunal erred in its assessment of the content of the disclosure.
Ground 6: the Tribunal’s approach to “substantially true” under s.43F
[148]Ground 6 was subject to an application to amend by the Claimant, made on the last day of the appeal hearing. Here we consider the ground in its unamended form.[149]The Claimant argues that the Tribunal erred in finding that the Claimant lacked a reasonable belief that the information disclosed and any allegation in it were substantially true. The ground, as formulated in the Combined Amended Grounds of Appeal raises two points: i) The Claimant’s belief was found only to be lacking “in some minor or peripheral respects”. ii) The Tribunal interpreted “substantially” in s.43F very strictly, requiring a belief in the truth of 95% of the disclosed information.[150]The Claimant argues that the Tribunal failed to carry out a qualitative assessment of whether the substance of the information and allegations was true and applied the s.43F test too strictly. The Claimant submits that it would be an error of law to require belief in the truth of 95% of the information and allegations in the disclosure.[151]There is no definition of “substantial” in the ERA. Korashi is authority for the proposition that there must be a reasonable belief in the truth of more than “the gist” of the disclosure made. Neither party identified any other authority that assisted.[152]The Claimant pointed to the definition of “substantial” in s.212 Equality Act 2010, as meaning “more than minor or trivial”. However, Ms Moss accepted that the context of the use of the word in that Act is very different – it is particularly relevant to the definition of a disabled person for the purposes of that Act. We have no doubt that in s43F “substantially true” cannot mean “true in a more than minor or trivial way”; that would defeat the obvious purpose of the statutory regime, as identified in Korashi.[153]The “95% true” point derives, in the Claimant’s formulation of Ground 6, from paragraph 511 of the Reasons, which reads: 511. For the claimant, Mr O'Dempsey submitted that the claimant, a distinguished and experienced senior detective, who was widely respected by his colleagues, was not, and should not be found to have been, dishonest, or unreliable, in his evidence to the Tribunal. He had relied upon information from trusted colleagues, and was entitled to take it at face value. In his oral submissions, Mr O’Dempsey invited the Tribunal, repeatedly, to reject any notion that the claimant was “making stuff up”. This was, of course, a response to the respondent’s submissions that he was doing so, at least in some instances. Mr O'Dempsey argued, correctly, that much, perhaps 95%, it was hard to put a figure on it, of what the information he conveyed was correct, and could be shown to be true. That, however, is not the point. As will be seen, in the case particularly s.43F disclosures, that is not enough. If the claimant did not have a reasonable belief in even 5% of any disclosure, that is potentially fatal. Mr O'Dempsey is doubtless seeking to rely upon the reliable aspects of the claimant’s disclosure to support other aspects where there is less corroboration or support for what he disclosed.[154]This paragraph needs to be seen in its proper context. It appears in a section (paragraphs 462-533) addressing the credibility of the Claimant’s evidence. It is part of the reasoning that led the Tribunal to reach the conclusion, which we described above as nuanced, that it did not find that the Claimant had deliberately sought to mislead the Tribunal, but had found his evidence to be unreliable on many aspects of the claim (paragraphs 531-531).[155]The Tribunal addressed the tests to be applied in determining whether there were protected disclosures in a separate section, at paragraphs 400-461. In that section, having referred to Korashi, the Tribunal directed itself as follows at paragraph 431: The extent to which the claimant has to show that he had a reasonable belief in any of the allegations contained in his disclosure as one of degree, and as discussed in the case law, lack of reasonable belief in a minor aspect of the allegations made or not to be fatal to the disclosure relied upon particularly taking a purposive approach to encourage and support whistleblowers in the workplace. A qualitative, rather than a quantitative, approach will be more appropriate, the tribunal considers. That said, the more stringent provisions of third tier protected disclosures do mean that there can be bear traps for the unwary, and the whistleblower who makes such disclosures needs to be rather more circumspect than one who only makes such disclosures to his employer. A minor slip may not vitiate a potentially protected disclosure, but one that is more than minor must be capable of having that effect, or the wording of section 43F would be of no effect. The tribunal must therefore look at all of the allegations which it considers constituted the information disclosed which is relied upon as amounting to any of the claimants pleaded 19 protected disclosures.[156]That direction cannot be criticised. It is clearly at odds with the suggestion that the Tribunal applied a “95% true” test.[157]The Claimant further argues that the Tribunal failed to follow its own self-direction in paragraph 431. The Tribunal considered each of the 19 PDs in turn. In each case it asked itself whether the Claimant satisfied the s.43F test. It did so both in cases where the Claimant had satisfied the s.43B test, and in cases where he had not. The reasoning in each case is granular and extensive: in respect of PD 1.2 for example, it occupies 8 pages of the Reasons. We were not shown any references in those sections of the Reasons to a “95% true” test. There is nothing to indicate that is the test the Tribunal applied, as opposed to the qualitative test.[158]We do not accept that the Tribunal erred in its interpretation of “substantially” in s.43F by applying a “95% true” test. Reading the Reasons as a whole and in context, the Tribunal did not apply a requirement that the Claimant had to believe more than 95% of the information/allegations disclosed.[159]That leaves the question of whether the Tribunal can be seen, from its Reasons, to have applied an incorrect approach to the question of “substantially true” for the purposes of s.43F and whether it failed to apply a proper qualitative assessment of the substantial truth of the information disclosed and the allegations within it.[160]The complaint in the ground is that the Claimant’s belief was found to be lacking “in some minor or peripheral respects”. That, of course, is the Claimant’s assessment – that the lack of requisite belief was minor or trivial. We were taken through each of the six PDs subject of this appeal. The Claimant’s argument is that the Tribunal “lost sight of the main thrust” of the information and allegations, or “failed to identify the substance of the disclosure”. In each case, the Claimant set out what, in his submission, was the substance of the disclosure, and criticised the Tribunal for relying on minor or trivial matters.[161]There is a heavy irony in the Claimant’s approach in Ground 6 compared with his approach in Grounds 1 and 2. In Grounds 1 and 2, the Claimant criticises the Tribunal for taking into account broader content of the Claimant’s PDRs, rather than assessing only specific paragraphs that the Claimant wished to rely on as constituting the information disclosed. In Ground 6, having “filleted” the specific passages upon which he wishes to rely, the Claimant asks the Tribunal to make a qualitative assessment of the substance of those specific passages, without reference to the broader context of adjacent passages upon which the Claimant does not rely. The Claimant’s approach is impermissible.[162]PD 3.5 serves as a good example. The Claimant’s case, on appeal, is that the Tribunal should have found that the substance of PD3.5 was that a death was wrongly characterised as accidental when it should have been classified as suspicious and investigated accordingly. It is said that the Tribunal wrongly focussed on the Claimant’s allegations of cronyism, and on the Claimant’s use of the term “murderer”.[163]The Tribunal’s findings on the s.43F test in relation to PD 3.5 are at paragraphs 1893-1904. The Tribunal notes that PD 3.5 had failed the s.43B test (the subject of Ground 5), so this was considered in the alternative.[164]The Tribunal found, as a fact, that the Tribunal did not have a reasonable belief in the truth of the following: i) That a review had criticised the manner in which the investigation was managed by TD/Supt. Worth (paragraph 1894). The Tribunal found that the Claimant had at best, suspicion, speculation or surmise that this was the case. ii) That mistakes in the investigation had allowed a murderer to walk the streets of Manchester, and that the coroner had returned the investigation to the Respondent as a murder investigation (paragraphs 1898-1899, 1901). The Tribunal found that the allegation that a murderer is free to walk the streets of Manchester was a gross exaggeration and one in which the Claimant could not have had a reasonable belief (paragraph 1901). iii) That DCI Worth had been promoted because of a close friendship with a senior officer, and an appraisal had been improperly changed by her line manager. The Tribunal had already found that the Claimant lacked a reasonable belief in those allegations for the purposes of PD 1.16.[165]In reaching its conclusion, the Tribunal had regard to the lack of evidence available to the Claimant when he made his allegations (paragraphs 1895-1898). It also took into account differences, in various parts of the evidence, between whether a murderer had walked free, or “potentially” walked free; and between the use of the terms “murder” and “suspicious death”. The Claimant argued these were insignificant differences in shades of meaning. The Tribunal disagreed, bearing in mind the Claimant’s experience and expertise and the fact that he had a law degree (paragraph 1900).[166]The Tribunal took into account what it found to be the Claimant’s animus against TD/Supt Worth. It regarded that as relevant to the question of whether any belief on the part of the Claimant was reasonable: whether it was the result of careful consideration or jumping to a conclusion on the basis of pre-conception and personal opinion (paragraph 1902).[167]The Tribunal’s reasoning, which we have only summarised in outline, reveals no error of approach. The Tribunal made findings of fact and reached evaluative conclusions as to the Claimant’s reasonable belief in the substantial truth of the information and allegations disclosed. It cannot possibly be said that the Tribunal erred in identifying the substance of the PD. One need only look at where PD 3.5 appears in PDR 3.[168]PD 3.5 appears in the LOI as follows: …. a Coroner has recently returned to GMP a case that T/Supt Worth dealt with involving the death outdoors of a Hungarian man. T/Supt Worth led the investigation and determined it was accidental, there was no third party involvement and it was not suspicious. The Coroner has recognised it as a suspicious death and returned it to the Force. The case has been reviewed and there is criticism of the manner in which the investigation was managed by T/Supt Worth. The investigation has now been returned to the Major Incident Team and is being investigated as a murder. The chances of success however are greatly reduced given the previous mismanagement and the time that has elapsed.[169]In assessing the substantial truth of the information and allegations disclosed, the Tribunal was entitled to have regard to the context in which this passage occurs. i) It appears in a section headed “Further concerns re Superintendent Promotion Process, the continuing smell of cronyism and further risks to the public” ii) The first two paragraphs of this section complain of cronyism in the promotion process leading to promotion to critical decision-making roles on the basis of friendships rather than ability. iii) The passage relied on by the Claimant appears in the third paragraph. It is not the whole of the paragraph; indeed, it starts part way through a sentence. The beginning of the paragraph reads: In my “Whistle-blowing report” and within my grievance reports, I have made reference to T/Supt Worth who has been successful at the recent promotion board interview. During the interview candidates had to talk about a hypothetical critical incident scenario and T/Supt Worth clearly must have dealt with the hypothetical scenario to the assessors’ satisfaction, however in reality… iv) After the passage relied on by the Claimant, the immediately following paragraph begins: As a result, a murderer is free to walk the streets of Manchester, perhaps to strike again. v) The same paragraph refers to “The murder T/Supt Worth wrote off as not being suspicious”. Following paragraphs complain of DCI Worth’s close friendship with a senior officer. The following question is asked: However how can the Force deem a candidate who allows a murderer to walk around free suitable for advancement into a critical decision making role, particularly when read with my whistle-blowing report and grievance reports about this officer. vi) The section then goes on to make further allegations about DCI Worth, and promotion based on friendship part of which formed the basis of PD 3.4. The section then moves onto complaints about the promotion and competence of another officer. vii) The immediately following section of PDR3 is headed “Conclusions”. The Claimant sets out a series of bullet points summarising the failings he has described. The allegation that is now the basis of PD 3.5 is summarised as follows: A senior officer dismissing a murder as an accidental death - allowing a murderer(s) to walk free.[170]It is simply wrong to suggest that the Tribunal erred in identifying the substance of the information disclosed and the allegations within it. It did not lose sight of what this disclosure was about. The contention that a senior officer had made a mistake which allowed a murderer (and not a potential murderer) to walk free was central to the allegation, even in its narrow form as set out in the LOI. The whole passage was merely an example used to illustrate the thrust of the Claimant’s disclosure, which was about officers being promoted beyond their ability because of cronyism.[171]In any event, the assessment required by s.43F is a factual assessment. It turns in part on a primary factual finding, of what the Claimant believed; and in part on evaluative factual assessments: as to the substance of the allegations and as to the reasonableness of the Claimant’s belief. That factual assessment is a matter for the Tribunal. Where the Tribunal found that the Claimant did not have a belief in the truth of certain matters, or that such a belief was not reasonable, it was for the Tribunal to determine, as a matter of fact, whether the Claimant had a reasonable belief in the substantial truth of the information and allegations disclosed. There is no error of law identified by the Claimant in simply criticising the Tribunal for failing to identify the substance of the allegations or fastening on minor or trivial factual matters. It was for the Tribunal to assess these things. This criticism could only proceed as a perversity challenge. Given the Tribunal’s detailed reasoning, following over 100 days of evidence and argument, any perversity challenge against its assessment is hopeless.[172]The Claimant criticises the Tribunal for splitting hairs between the use of the word murderer, as opposed to someone who had committed murder or manslaughter. This again is a matter of factual assessment. The Tribunal expressly deal with the distinction at paragraph 1900. It found that the distinction was significant and one that the Claimant would have well understood. In any event, its concern, it appears to us, is not so much with the classification of the offence committed as the certainty with which the Claimant stated that an offence had been committed – the Tribunal found that to be a gross exaggeration (paragraph 1901).[173]The Claimant also criticised the Tribunal for wrongly introducing the concept of good faith into the assessment of belief in the substantial truth of the allegations, at paragraph 1902. The Claimant argues that even if he had an animus against TD/Supt Worth he also had a reasonable belief in the truth of the matters he alleged. However, this is no more than an attempt to rewrite the Tribunal’s findings. The Tribunal found, as a fact, that the Claimant did not have a reasonable belief in the truth of matters he alleged. As we have set out above, it had a number of reasons for doing so. One of them was that the Claimant’s animus against DCI Worth had led him to make allegations where he had jumped to conclusions based on pre-conceptions (paragraph 1902). That is not to introduce a good faith test into the assessment of the Claimant’s belief. In assessing a person’s belief in the truth of what they say, or the reasonableness of what they say, it is uncontroversial that one may have regard to the bias, prejudice or animus of the speaker in assessing whether they actually believe what they say or have reason to believe it. The Tribunal found that the Claimant’s pre-conceptions, born out of personal animus, led to him jumping to conclusions without evidence. There is no error on the part of the Tribunal.[174]In relation to PD 1.2, the Claimant’s challenge is similarly unrealistic. The Claimant argues that the Tribunal lost sight of the “obvious substance of the disclosure” and focussed on matters that were not the important or substantial part of the disclosure. These were matters in relation to which the Tribunal was entitled to, and did, make a factual evaluation. The Claimant further criticises the Tribunal for failing to focus on the words used in the disclosure in relation to the 13 year old boy and the later rape of a different child.[175]The Tribunal found that the information disclosed in PD 1.2 included that a 13 year old boy had been sexually abused and that another boy had been raped on a later occasion. The first proposition appears in a red text passage in PDR1, the second is in the yellow text – i.e. in a passage from PDR1 quoted in the LOI. The Tribunal found that the Claimant did not have a reasonable belief that these allegations were substantially true.[176]The Claimant argues that, even taking into account the red text, the Claimant only disclosed information that “it is understood that” the boy had been abused: i.e. he was describing a state of belief of others, a distinction that the Tribunal failed to appreciate. The Claimant further argues that he had qualified the later rape allegation by saying “As a result of the failings of Op Nixon the paedophile was able to go on and rape a 15 year old boy at a later date, an offence for which he was arrested and charged.”[177]We reject these arguments. It was a matter for the Tribunal to evaluate, in context, the meaning of the disclosure, and to assess the Claimant’s requisite belief and its reasonableness. It was entitled to make the assessments it made. The Claimant’s reading of the passages referred to is not a natural reading in either case. The reference to arrest and charge does not qualify or reduce the force of the factual assertion – a statement of fact that a boy had been raped. “It is understood that” is said to carry a meaning beyond that which might be thought apparent in the PDR1. It there were any doubt about what the Claimant was actually saying in this sentence, it is made clear in the conclusion to PDR3, where the Claimant summarises serious failings including the bare statement of fact:
“A senior police officer allowing a violent paedophile to abuse a child”
. The Tribunal reached an assessment it was entitled to make.[178]Having given these examples, it is not necessary to address each of the other PDs raised in the appeal. They all fail for the same reasons. The Tribunal set out its reasons in detail. It made factual evaluations of the Claimant’s belief, the reasonableness of that belief, and as to what the substance of the information and allegations was. The reasoning shows no error of approach. The argument that the Tribunal “lost sight of” or “failed to identify” the substance of the allegations is no more than a perversity challenge and, in each case, as with PD 3.5, it is hopeless. The Tribunal’s evaluation in each case was one that it was entitled to reach.
Proposed amendment to Ground 6
[179]During the course of argument on the first day of the appeal hearing, Ms Moss made a submission along the following lines. When the Tribunal carries out its assessment under s.43F it can only assess the Claimant’s reasonable belief in the substantial truth of that which the Tribunal has found to be a qualifying disclosure under s.43B. It cannot have regard to the Claimant’s reasonable belief in the truth of other information. In particular, it cannot have regard to the Claimant’s reasonable belief in the substantial truth of other information disclosed which the Tribunal has found did not amount to a qualifying disclosure.[180]That point was advanced as a matter of law, and a question of statutory constructions of s.43F. It is argued that for the purposes of s.43F(1)(b)(ii) “the information disclosed” can refer only to “a qualifying disclosure” as those words appear in the introductory words of s.43F(1).[181]At the end of the day’s submissions, Mr Gorton KC said that this appeared to be a new point of law and queried whether it was within the Claimant’s Grounds of Appeal. During the course of his own submissions on day 3, Mr Gorton KC invited us not to deal with this point, as it was not within the grounds of appeal; he made brief submissions on why, in any event, the point was a bad one.[182]The issue arose again on the fourth and final day of the hearing. Ms Moss argued, in reply, that the point falls within the existing Ground 6, but that if it did not, she sought permission to amend that ground to introduce the point. She produced a draft amendment which added words to the first sentence of Ground 6 (quoted in bold underline): The Tribunal erred in finding that the Claimant lacked a reasonable belief that the information disclosed and any allegation contained in the disclosure was substantially true, when the Claimant’s belief was found only to be lacking in the information/allegations beyond the qualifying disclosure and/or in some minor or peripheral respects.[183]Having heard submissions from the parties, we gave a ruling that this was a new point that did not fall within Ground 6. As a result, if the Claimant wished to pursue it an application to amend would be required.[184]I gave a brief indication of the reasons for this ruling ex tempore but indicated that we would include our reasons in this judgment. Our reasons were as follows: i) The point raises a question of statutory interpretation as to the scope of what information can be considered in the assessment required by s.43F. ii) That is a discrete question of law, which was capable of being identified in the grounds of appeal. iii) Ms Moss argued that Ground 6 was drafted deliberately widely and was wide enough to encompass the point. iv) We disagreed. The point now raised is a different type of point to those included in Ground 6. As we have set out above, Ground 6 raises two points, both of which go to the issue of the meaning of “substantially” in the question of reasonable belief that the information disclosed and any allegation contained within it, are “substantially true”. Both points in the grounds go to questions of assessment of the “information disclosed and any allegation contained within it”. The first argues that where there was information/allegation in which the Claimant did not have a reasonable belief, those matters were only minor or trivial and not the substance of the information/allegation. The second argued that the Tribunal applied at “95% true” test. The new point is a completely different point: it is an argument about the scope of the body of information/allegation in respect of which the Claimant’s relevant belief is to be tested: it is a threshold point. v) It is no answer to say that Ground 6 was drafted widely enough to include the point. The purpose of grounds of appeal is to identify clearly and briefly the error of law that an appellant says the Tribunal made (EAT PD 3.8.1). Clear identification of an error of law is important so that the Respondent knows the case it has to address, and the EAT can effectively case manage the appeal and prepare for the hearing. We would deprecate any suggestion that grounds can be drafted widely so as to allow the inclusion of new points as and when they occur to an appellant. In any event, as we have set out in the previous paragraph, this new point is a different point, and Ground 6 is not wide enough to cover it. vi) Ms Moss argued that the point was flagged in her Skeleton Argument. We disagree, but even if it had been, that is irrelevant to the question of whether the point is contained within the Grounds of Appeal. If there is substance in that point, it can only be relevant to the question of amendment.[185]Having given that ruling we gave directions for the parties to file further submissions on the amendment application. It was agreed that we would deal with the amendment application on paper and include our decision in our judgment. Ms Moss indicated that she had made her submissions on the substance of the new point. We made clear that Mr Gorton KC was entitled to file submissions on the substance of the point as well as his objection to the amendment application. In accordance with our directions, the Claimant made an application to amend on 6 July 2026, and the Respondent responded on 7 July 2026. We have had regard to both parties’ further written submissions in dealing with the amendment application.[186]The principles relevant to amendment are set out in the well-known judgment of HHJ Serota QC in Khudados v Leggate and others [2005] ICR 1013. The Claimant also relied on the decision of Heather Williams J in Khakimov v Amova Asset Management UK Ltd. [2026] EAT 47 at paragraph 129. That decision is, however, no more than an application of the Khudados principles to the facts of the particular case.[187]The Claimant’s application to amend argues: i) The application to amend was made promptly. The Claimant proceeded on the basis that the point fell within the existing Ground 6. The Respondent did not take objection to the point until the hearing was underway. Once the Respondent raised the objection, a ruling was sought and then the application to amend was made. ii) The amendment is a minor one. It is intimately connected to the existing Ground 6. iii) The ground has a reasonable prospect of success. iv) If the amendment is not permitted, the EAT will consider s.43F ignoring its express terms and would proceed on an incorrect basis. v) There is no prejudice to the Respondent. The only relevant authority was already before the EAT, and the Respondent is able to deal with the point. vi) There would be “grave injustice” if the Claimant were deprived of an argument with a good prospect of success “just because a Ground of Appeal should have been clearer”. If Ground 6 was drafted insufficiently widely, that is the fault of the Claimant’s representatives, not the Claimant. vii) It is in the public interest for the point of statutory interpretation to be determined, so that the legal framework concerning whistleblowers is clear for any lay person to understand. If the Tribunal decision were allowed to stand without challenge, the judgment could have a persuasive effect on other tribunal claims.[188]The Respondent argues: i) The new ground is not raised in the Skeleton Argument and was developed orally at the hearing. The Respondent objected as soon as it could. The amendment application was not raised until the final day of the hearing. ii) There is no proper explanation for the delay in raising the point. The Grounds of Appeal were extensively recast in May 2025 and there was a continued r.30(10) hearing in November 2025. iii) The application has caused delay and diverted time from the appeal itself. iv) There is prejudice to the Respondent in having to deal with a new point of law without proper notice. v) The new ground is not reasonably arguable.[189]Both sides’ arguments overlook two points.[190]First, not only is the point not raised in the Grounds of Appeal; it is not suggested that it was a point raised before the Tribunal. It does not feature in the Tribunal’s Reasons. Insofar as the Claimant alleges the Tribunal erred in law, it does not appear to be a point that the Tribunal was asked to address. We have not read all of the submissions lodged below, nor have we read a transcript of oral submissions. But there is no suggestion in the amendment application, or the submissions in support of it, that the point was raised below. We are therefore dealing with a proposed amendment which raises a new point of law on appeal, as to which the well-known principles in Kumchyk v Derby City Council [1978] ICR 1116 are engaged. The EAT may allow a new point to be argued on appeal where: i) It is a pure point of law; ii) All relevant facts have been found or are undisputed; iii) There is no unfairness to the Respondent; iv) The interests of justice favour allowing the point to be taken.[191]Second, the point can have only limited effect on the appeal. The nature of the point is that in assessing s.43F, the Tribunal should only have regard to the information and allegations that the Tribunal found to have been made pursuant to section 43B. It operates to narrow down the field of information and allegations that are the subject of enquiry as to the Claimant’s beliefs as to substantial truth. However, of the six PDs that are subject to appeal: i) In respect of four, the Tribunal found that there was no qualifying disclosure; it went on to consider s.43F for completeness and in the alternative. Given that it found there was no qualifying disclosure, there is no narrowing down of scope upon which this point can bite. ii) The only two PDs in the appeal where the disclosure passed the s43B test are PD 1.12 and PD 3.1 – the two PDs concerning DCI Snowball.[192]It appears to us that the new point could only affect PD 1.12 to PD 3.1. That is a factor to weigh in assessing the prejudice to the Claimant if the amendment were refused.[193]The explanation for the timing of the amendment application: i) We are not satisfied that there is a good explanation for the timing of the application. ii) Ms Moss’s explanation is that she had proceeded on the basis that the new point fell within the existing Ground 6. As we have already ruled, she was wrong about that. As we have found, the new point is a different point. If it is a good point, and, as the Claimant argues, of public importance, it is difficult to see why it was not identified at an earlier stage of the appeal, either when the appeal was commenced, or at any point in the extensive preliminary consideration of the appeal before HHJ Tucker in 2025. We reject the Claimant’s characterisation of the problem being that Ground 6 “could have been clearer”. The ground is clear; it does not raise this point. iii) Not only does the point not appear in the Grounds of Appeal, but it does also not appear in the Claimant’s Skeleton Argument. We reject Ms Moss’s submission on this point. The most that Ms Moss could point to is paragraph 94 of her Skeleton Argument, which sets out a series of five questions under s.43F. Paragraph 94(2) is relied on, it reads: Identify the substance/substantial part of the information (which is believed to tend to show a relevant failure) and allegations within it, by undertaking a qualitative review, rather than a quantitative one, by asking themselves “What really is this disclosure about?” iv) Paragraphs 94-95 criticise the Tribunal for failing to carry out the qualitative exercise and applying the test “far too strictly”. The point of statutory construction now relied on is not identified. v) We are driven to the conclusion that the Respondent is right in submitting that the new point is an afterthought.[194]The new point is, however, a point of law, and does not appear to turn on any additional evidence or documentation being put before the EAT. That is a relevant factor from a Khudados perspective: it does not require any further material from the proceedings below. From a Kumchyk perspective: it may be that determining the point would not require additional evidence or findings of fact in order to reach a conclusion on the case. However, as we explain below, we do have concerns that if the point had been addressed below the Tribunal may well have structured and expressed its Reasons in a different way.[195]The Respondent has been able to argue the point. There has been some prejudice to the Respondent in having to do so quickly. However, the Respondent is represented by experienced leading and junior counsel who have acted quickly to make submissions on the merits of the point. They have not suggested that more time is needed for further legal research.[196]The public interest and the interests of justice cut both ways. On the one hand, there is some force in the Claimant’s point that clarity in the law is important, and if the Tribunal erred, the EAT should address that. However, the public interest in clarity of the law is best served when points are addressed in an organised and well-ordered manner, and not as a late afterthought. If the point is one of public importance, we have considerable hesitation in determining it in circumstances where(a) it is a new point that was not addressed below, and we do not have the benefit of the Tribunal’s first instance analysis and findings on the point;(b) it has been raised very late in the day, without the opportunity for any extensive legal research.[197]We have also further considered the impact the point has on the appeal as a whole, which is relevant to the prejudice to the Claimant. i) We have already indicated that the point only arises in relation to PD 1.12 and PD 3.1. ii) We have already indicated that the appeal fails on Ground 1 and Ground 2. That means that the Tribunal was entitled to take an expanded approach to the information disclosed. iii) We have indicated that Ground 6 as originally pleaded fails in its entirety, including in relation to these two PDs.[198]What difference, if any, does this new point make to the appeal against the Tribunal’s decision on PD 1.12 and PD 3.5?[199]The Appellant’s Skeleton Argument makes submissions about PD 1.12 at paragraph 110-111. The argument is: i) the Tribunal “failed to identify the substance of the disclosure” which was about a senior police officer placing bugging devices in a police office. ii) The inclusion of expanded material as included in the disclosure meant that the Tribunal was scrutinising an entirely different disclosure to the one relied on by the Claimant.[200]The Skeleton deals with PD 3.1 at paragraphs 112-114. The arguments are the same: the Tribunal failed to identify the substance of the disclosure and had regard to the expanded version of the disclosure.[201]These points are familiar from Grounds 1, 2 and (original) 6. All of those grounds have failed. No point is taken that the Tribunal’s finding on qualifying disclosure should have excluded certain information from consideration at the s.43F stage.[202]In her oral submissions, Ms Moss argued that once the Tribunal had found there was a qualifying disclosure in these two cases, it should only have considered the substantial truth of the information and allegations contained within the qualifying disclosure as found. It is instructive to look at this point in the context of the findings in the Reasons relating to the two PDs.[203]PD 3.1 concerned the disclosure that DCI Snowball allowed an armed robbery to take place without intervention. i) At paragraph 1631, the Tribunal found that the information disclosed and the allegations contained within it concerned the fact of the robbery but also concerned cronyism in the appointment of DCI Snowball, who had “friends in high places”. The Tribunal was clearly right about that. The yellow text (i.e. passages included in the LOI included a paragraph that expressly stated that DCI Snowball had been placed in his position because of cronyism despite lacking experience or skills. It makes an allegation of failure to take proper disciplinary action against him at an earlier time. ii) At paragraph 1632, the Tribunal found that the Claimant had a reasonable belief that the information he disclosed tended to show that the safety of the public had been endangered, and that health and safety had been endangered. iii) It said that whether the Claimant reasonably believed that the information tended to show a criminal offence had been committed was “questionable” i.e. it did not make a finding that he did have such a reasonable belief. It rejected the argument that the Claimant had a reasonable belief that the information tended to show a breach of Article 2 ECHR, or a breach of the Police Conduct Regulations. iv) It held at paragraph 1634 that the Claimant did reasonably believe that the disclosure was in the public interest. It stated that the disclosure satisfied s.43B on “at least one” of the prescribed grounds (paragraphs 1634-1635). v) However, at paragraph 1636, it said that the problem for the Claimant was that the disclosure was not limited to disclosure of DCI Snowball’s poor decision-making and its risks to victims of an armed robbery: it contained allegations about his promotion into the role he held. vi) At paragraph 1637, the Tribunal made findings about the allegations relating to DCI Snowball’s “friends in high places”. It found that he made an assumption, based on a preconceived view of the relationship between DCI Snowball and ACC Sweeney. There was no evidence to support the Claimant’s contention. It found that the making of the allegation in the disclosure was reckless. That, it found, was fatal to PD 3.1, which was not a protected disclosure.[204]Ms Moss’s point now is that having found that there was a qualifying disclosure in relation to the robbery/poor decision-making, the Tribunal could only consider the truth of that which it had found to be a qualifying disclosure. In deciding whether the Claimant had a reasonable belief in the “information disclosed and any allegations contained within it”, the Tribunal would have to close its mind against any consideration of: i) The allegations of cronyism that, on the Claimant’s own express case formed part of this disclosure; ii) The allegations that the robbery gave rise to a criminal offence, a breach of Article 2 ECHR and a breach of the Police Conduct Regulations.[205]A similar point can be made in relation to PD 1.12. That PD made an express cronyism allegation, in the yellow text, about DCI Snowball: he was part of “Terry’s gang” (a reference to ACC Sweeney), and ACC Sweeney had arranged a posting for him at Wigan. During that posting, he had bugged senior staff’s offices. The Tribunal found that the disclosure satisfied the s.43B test in relation to the bugging of colleagues (paragraph 1515); but the Tribunal made a clear finding that the bugging was not what the Claimant wanted to draw attention to in this disclosure (paragraph 1511). Under s.43F it found that the disclosure was primarily about and expressly said to be an example of cronyism.[206]Ms Moss’s argument is that having found that the s.43B test was met in relation to the robbery, the Tribunal could only have regard to the s.43F test in relation to the occurrence of the robbery/poor decision making, even though the Tribunal had found that was not the thrust of the disclosure, or what the Claimant wished to draw attention to.[207]We have considerable concern as to whether, procedurally, it is appropriate to raise this point now. As we have indicated, it is not suggested that this new point was raised before the Tribunal. If it had been, it is far from clear how the Tribunal would have approached matters. It clearly had serious reservations as to the Claimant’s reasonable belief in the cronyism allegations that expressly formed part of these PDs. Had the point been raised that once a qualifying disclosure had been found, the Tribunal could only look at the s.43F test in relation to that which had been found to be a qualifying disclosure, it is unclear as to how it would have structured its analysis.[208]It is noteworthy that the Tribunal did not make an express finding, under PD 3.5, as to whether the cronyism part of the PD amounted to a qualifying disclosure. In relation to PD 1.12, the Tribunal found that the disclosure satisfied the s.43B test in relation to the bugging but expressly found that that was not the thrust of the disclosure. It did not make an express finding as to the cronyism allegation at the s.43B stage. In both cases, it dealt with these parts of the disclosure at the s.43F stage.[209]There is, in any event, no lack of clarity in the substance of the Tribunal’s reasons on both PDs: the thrust of the disclosures were the cronyism parts, of which DCI Snowball’s conduct formed examples. While the Claimant had the requisite belief in the underlying conduct allegations, he did not have reasonable grounds to believe that his information or allegations about cronyism were substantially true.[210]Had the argument been put that a finding in relation to s.43B would preclude consideration of what it regarded as the thrust of the disclosures, the Tribunal may well have expressed or structured its reasons differently.[211]The Claimant’s argument depends on a construction of s.43F which limits the enquiry at s.43F(1)(b)(ii) to only that which a tribunal has found to be a qualifying disclosure and excludes from consideration any part of the disclosure which the tribunal finds does not constitute the qualifying disclosure.[212]Simply, as a matter of language, there is some force in that submission. However, it is also possible to read the sub-section more broadly, as looking more widely at that which was disclosed to the prescribed person. We note that the same issue arises in relation to s.43G (disclosures in other cases, e.g. to the media), where s.43G(1)(b) contains the same language, although that section also contains additional conditions not relevant to s.43F.[213]There is no authority that assists on this point one way or the other, at least none has been drawn to our attention in the short period since the point was raised. The Claimant relies on Kealy. It is true to say, as the EAT did in Kealy at paragraph 25, that only once a qualifying disclosure has been established does one consider whether it constitutes a protected disclosure pursuant to section 43G. In this passage, the EAT was setting out the general structure of the legislation. This passage sheds no light on the question in issue here. Kealy did not concern a case where part only of a disclosure had passed the s.43B test, and the question of what could be considered at the s.43F stage did not arise.[214]It is however noteworthy that at paragraph 28, the EAT went on to refer to structure of the legislation requiring a higher standard of belief in respect of a relevant failure when a person makes a disclosure other than to their employer. It said that the distinction was not surprising: A worker may not be able to assess whether information that is disclosed tends to show a relevant failure if it came from a third party, and might even doubt it is correct, but feel that if true it is so important it should be disclosed to her employer. It is not surprising that such a worker would fall within protection if the disclosure was made to her employer but a higher standard, requiring a reasonable belief in the truth of the information and any allegation contained in it may be required when it is made to a third party.[215]That passage is consistent with the policy of the legislation as described in Korashi, to which we have referred above.[216]We doubt very much that the Claimant’s interpretation of s.43F is consistent with this policy aim. It results in a situation where if the Tribunal finds that parts of a disclosure to a prescribed person are so baseless that they do not pass the s.43B test, for s.43F purposes the disclosure can be “cleansed” of the baseless parts, so that only the belief in the truth of the remaining part is necessary. If, on the other hand, those parts get over the s.43B test, the Tribunal then has to consider the “substantially true” test under s.43F. Such an approach, as the Respondent submits, would insulate a discloser from the consequences of their wilder allegations, even where the wilder allegations were the main thrust of the disclosure.[217]The Claimant’s interpretation also does not give effect to the wording of s.43F(1)(b)(ii) itself. The sub-section requires a reasonable belief in substantial truth of the information disclosed and “any allegation contained within it” in order for a disclosure to be protected under this section. That exercise cannot properly be carried out if the disclosure has been filleted by virtue of the Tribunal finding that the Claimant did not even have the requisite belief for the purposes of s.43B in part of the information or allegations.[218]One way of avoiding such an outcome would be for a tribunal to take a disclosure as a whole. If it finds that, although parts of it taken on their own might have met the s.43B test, taken as whole the disclosure fails that test, then the whole disclosure fails at the s.43B test. If it finds that the disclosure is a qualifying disclosure as a whole, then it can consider all of the information and the allegations contained within it at the s.43F stage. That is one possible approach. Given the point was not argued below, the Tribunal was not put in a position to avoid the potential pitfall by such an approach.[219]Taking all of these arguments into consideration, we prefer the Respondent’s analysis of the merits: the new point is without merit, particularly in the context of the particular disclosures in issue. We do not accept that the Claimant would be prejudiced or subject to injustice in not being allowed to take a point that is unmeritorious, has arisen late in the day in the appeal, was not argued below, and has limited impact on the appeal in any event. We refuse permission to amend.
Grounds 3 & 4
[220]Grounds 3 and 4 relate only to PD 1.2, PD 1.3 (both relating to Operation Nixon) and PD 1.5 (allowing Cregan to be released on bail).[221]The two grounds raise essentially the same point: that the Tribunal erred in its application of the principles relating to the relevance of delay in raising a disclosure. Both grounds turn on the approach to Muchesa and Simpson, cases which the Tribunal addressed in its Reasons. The Claimant argues that the Tribunal failed to apply those authorities correctly. Ground 3 alleges errors in relation to the question of reasonable belief that information tends to show a relevant failure. Ground 4 alleges errors in relation to the question of reasonable belief that disclosure is in the public interest. It is convenient to take the two grounds together.[222]In Muchesa, the tribunal had rejected the claim that the appellant had made protected disclosures. On appeal, a number of errors were alleged. It was argued that the tribunal had wrongly focussed on the objective truth of the allegations, rather than the appellant’s subjective belief. The tribunal had wrongly concentrated on what a hypothetical reasonable complainant would have done. It had taken into account a series of steps which the appellant had failed to take to address the wrongdoing which she raised in her disclosures. The tribunal had found “these were not rational actions motivated by a genuine desire to protect the residents.” The EAT (HHJ Burke QC and members) rejected the appellant’s argument. It said (paragraph 31): In reaching their decision the tribunal were, in our judgement, entitled - and indeed it was wholly natural for them - to ask themselves whether the actions or inactions of Miss Muchesa pointed not only towards the truth of her complaints but also to whether she genuinely believed in that truth. They determined that her actions and inactions were strongly inconsistent with such a belief i.e. she had not behaved in the manner in which she would have behaved had she reasonably believed in the truth of the complaints and was motivated by a genuine desire to protect the residents. She was not reasonably mistaken; she complained of events which have not occurred and for an ulterior motive of her own not connected with the care of the residents.[223]In Simpson, the Court of Appeal found that the tribunal had been entitled to find that the appellant’s failure to make an internal report to compliance was a factor that was inconsistent with his genuine belief in the breaches to which he referred in his disclosures.[224]The Tribunal directed itself as to the tests to be applied in determining whether any disclosure was a protected disclosure at paragraphs 400-414. At paragraph 409 it referred to Muchesa and to Simpson. Reference to Muchesa is to Muchesa v Central & Cecil Housing Care Support [UKEAT/0433/07] in which it was held that it was relevant to consider, when assessing whether a worker held a reasonable belief in the truth of what was disclosed and what it tended to show, how the worker would have been expected to have behaved if they genuinely held such beliefs. The worker’s conduct in that case was incompatible with her having such a belief, and the EAT upheld the dismissal of her claims on the grounds that she had not satisfied the test for reasonable belief. Similarly, in Simpson v Cantor Fitzgerald Europe [2021] ICR 695 the Court of Appeal upheld the EAT’s dismissal of an appeal where the workers failure to act upon what they what were allegedly very serious breaches of financial regulatory requirement for about a month was found to be relevant to the issue of whether he genuinely believed that his disclosures tended to show any serious wrongdoing.[225]The Claimant submits that Muchesa was only concerned with a discloser’s reasonable belief in the substantial truth of the information disclosed, rather than the requisite belief in s.43B. It is true that that was the question the EAT was dealing with in Muchesa; but the broad point is not so limited. The point is that in assessing whether a discloser held a belief, and whether that belief was reasonable, it is relevant to take into account whether the discloser behaved in a manner in which a person who believed that thing would have behaved. In Muchesa, the appellant’s inaction shed light on her lack of belief in the truth of what she disclosed. In principle, it may, in an appropriate case, shed light on whether the discloser believed that the information disclosed tended to show a relevant failure, or that the disclosure was in the public interest. We see no reason in principle why that would not be the case, and there is no authority to suggest otherwise. Whether the discloser’s actions or inactions do shed light on the discloser’s beliefs will be a matter of fact to be assessed in the light of the circumstances.[226]We are satisfied that there was no error in the Tribunal’s self-direction.[227]The Claimant goes on to argue that the Tribunal failed to apply the authorities and made findings that were internally inconsistent and not open to it. That requires consideration of how the Tribunal addressed the points in dealing with the particular PDs that are subject of these grounds of appeal.[228]Before coming to those PDs, we note that the Tribunal explained the shorthand it would use in dealing with the first PD – PD 1.1. At paragraph 657, it referred back to the tests it had set out earlier in the Reasons for whether there was a protected disclosure. It said: Amongst them is what we could call the Muchesa test, which is whether by his conduct in delaying making the disclosure, or by any other conduct, the claimant should be found to have acted incompatibly with holding the requisite beliefs that he must show for section 43B.[229]The challenge to the Tribunal’s approach to PD 1.2 requires some close reading of the Tribunal’s reasons as to the questions under s.43B. The Claimant argues that the reasoning is internally inconsistent; and/or that the Tribunal applied an impermissible approach. It made a finding that the Claimant did reasonably believe that information he disclosed tended to show a relevant failure but then went on to apply a separate “Muchesa test” which vitiated the belief which it had found to have existed.[230]From paragraphs 857, the Tribunal considered the question whether the Claimant had a reasonable belief under s.43B(1) in what the disclosure tended to show. It dealt with the relevant failures relied on by the Claimant: a criminal offence had been committed; failure to comply with a legal obligation – duty to protect the public and prevent crime, Article 2 ECHR, breach of the Police Conduct Regulations; endangering health and safety. It rejected the arguments based on commission of a criminal offence, Article 2 and breach of the Police Conduct Regulations.[231]As to failure in a legal duty to protect the public and prevent crime, the Tribunal said this, at paragraph 871: To the extent that the claimant reasonably believed that the disclosure tended to show that the actions of TD/Supt Scally gave rise to a risk to the public, or that a crime may be committed, the tribunal will accept the claimant in this disclosure had a reasonable belief that his disclosure tended to show that the respondent had failed in his legal duty to protect the public and to prevent crime.[232]As to endangering health and safety, the Tribunal said this at paragraph 881: The Claimant also relies upon limb (d) of section 43B(1) that the health and safety of the 13 year old boy had been endangered. The claimant accepts that the claimant did believe that this disclosure did tend to show that this was the case.[233]However, that was not the end of the matter, the Tribunal then went on to say as follows:883. The claimant was first aware of the alleged serious failings by TD/Supt. Scally in Operation Nixon in May 2012, when he claims that he was told about Operation Nixon verbally by DI Mortimer and D/Sgt Hull. He clearly knew about it by the time he raised his grievance on 25 June 2012. The matter was, of course, already a year old at that time. He did not, however, then take the matter outside the Force, but raised it as part of his grievance. He continued in that way, despite being invited, firstly by T/ACC Wiggett (it seems) in July 2012, and again by ACO Potts in January 2013 in the grievance appeal, to consider other routes for raising these matters. The claimant declined to do so, but it is clear from the conversation that ACO Potts had with Kieran Murray in February 2013, and from the claimant’s communications with his Fed. reps. in April 2013 that he was considering taking the matter to the IPCC, albeit firstly approaching the PCC, which he did . He did not, however, take these matters to the IPCC until the end of January 2014.884. The Tribunal has considered the significance of this delay. In certain instances, it can be relevant as to whether the claimant actually held the reasonable belief that his disclosures tended to show any of the prescribed matters in s.43B(1). In Muchesa v Central & Cecil Housing Care Support [UKEAT/0433/07] it was held that it was relevant to consider, when assessing whether a worker held a reasonable belief in the truth of what was disclosed and what it tended to show, how the worker would have been expected to have behaved if they genuinely held such beliefs. The worker’s conduct in that case was incompatible with her having such a belief, and the EAT upheld the dismissal of her claims on the grounds that she had not satisfied the test for reasonable belief. Similarly, in Simpson v Cantor Fitzgerald Europe [2021] ICR 695 the Court of Appeal upheld the EAT’s dismissal of an appeal where the worker’s failure to act upon what were allegedly very serious breaches of financial regulatory requirement for about a month was found to be relevant to the issue of whether he genuinely believed that his disclosures tended to show any serious wrongdoing.885. Whilst the circumstances of this case are not, at first blush similar to the very stark facts of the two cases cited above, there is another aspect to this case, not present in the cases cited. The claimant was being advised by his union, and then by solicitors and was clearly keen to take the matters outside the Force from early 2013 and kept threatening to do so. The Tribunal would not from the delay in itself, in these circumstances, conclude that the claimant lacked the necessary reasonable belief in what the disclosures tended to show, but the fact that the claimant also continued to raise these matters by way of his grievances is very curious, and he was cross – examined on why he did this. That the trigger for his referral to the IPCC in January 2014 was his lack of success (in contrast with the success of DCI Worth) in the recent Superintendent promotion process, a matter wholly omitted from his comprehensive first witness statement, leads the Tribunal seriously to doubt that the claimant had the necessary belief that this disclosure tended to show the very serious failures that he relies upon. His conduct in this delay, and raising the matter through an internal grievance, was inconsistent and incompatible with such a belief, especially when his belief, as he repeated in evidence, was that there had actually been sexual abuse of a 13 year boy. The Tribunal therefore concludes that this disclosure fails the s.43B test.[234]The Claimant argues that paragraphs 871 and 881 show that the Tribunal found that the Claimant did have the requisite belief for the purposes of s.43B(1). Having so found, it needed make no further consideration of s.43B(1). It erred in applying another separate test at 884-885 to “vitiate” what it had already found.[235]We disagree: i) Read this passage of the Tribunal’s Reasons as a whole, it is obvious that the Tribunal did not find that the s.43B(1) test was satisfied by the time it reached paragraph 881. It went on to find, expressly at paragraph 885 that the disclosure failed that test. ii) Paragraphs 871 and 881 are not inconsistent with paragraph 885. Paragraph 885 does not “vitiate” a finding already made. We accept the Respondent’s submission that the Tribunal was engaged in an iterative process of reasoning. It had a number of factors to address and evaluate. It took them in turn. It only reached a conclusion when it had considered the last of them. iii) We note that paragraphs 871 and 881 are qualified or limited. iv) Paragraph 871 begins “To the extent that the Claimant reasonably believed” – the rest of the paragraph proceeds on the basis of that assumption. Paragraph 881 talks about fact of belief, not reasonableness of belief. In any event, the Tribunal can be taken as meaning something provisional such as “on what we have considered so far, and before we come to the next point, we would be prepared to accept the Claimant believed”. v) It is clear from paragraph 882 that the Tribunal moved on to consider the question from another perspective, before reaching a conclusion. The only proper way to read paragraph 885 is that it contains the conclusion, and any finding in the earlier paragraphs was a provisional step along the way. vi) There is no doubt that the Reasons could have been more happily expressed; but as Mr Gorton KC pointed out, this is a 381 page judgment, and the Tribunal can, we find, be forgiven for the occasional lack of clarity.[236]For our own part, we may not have described Muchesa as imposing a “test”, nor have treated it as a separate step in the reasoning. Rather the case highlights certain factors that may be relevant in an evaluation of the s.43B(1) questions in the light of all the circumstances. However, the Tribunal did not err in doing so. In substance they carried out the correct exercise. We bear in mind that the Tribunal had a huge task. It had to consider 19 separate PDs; each contained a volume of information (even on the Claimant’s own case as to the information disclosed) and a number of alleged relevant failures. Each had to be considered against s.43B and s.43F. The Tribunal assiduously considered, separately, whether each disclosure was qualifying and protected. It is understandable that in choosing to do so, it set itself a sequence of tests that it was to consider, so that all matters were taken into account.[237]The Claimant next criticises the Tribunal for the matters that it considered as inconsistent with the Claimant holding the requisite belief. That is, in reality, a perversity challenge. The Tribunal explained its reasons at paragraph 883-885. They are not perverse.[238]Under Ground 4, the Claimant challenges the Tribunal’s approach to the Claimant’s reasonable belief that disclosure was in the public interest. At paragraph 886, the Tribunal said: Turning to the public interest test, in the alternative, the tribunal however does also consider that the delay, and the grievance appeal being used to first raise these issues can also be relevant to the issue of whether, at the time of making the disclosure, the claimant had a reasonable belief that it was in the public interest to make this disclosure. It seems to us that the same considerations apply, and the same matters referred to above which prevent the claimant succeeding on section 43B(1) by reason of the incompatibility of his conduct with the necessary reasonable belief also applied to the requirement then to share a reasonable belief that it was in the public interest to make the disclosure.[239]The Claimant argues that the Tribunal failed to consider the applicable tests as to whether the Claimant had a reasonable belief that his disclosures were made in the public interest. However, the Tribunal had correctly directed itself as to the authorities at paragraphs 446-459. There is no challenge to those directions. It cannot be said that having set out its self-direction it did not have regard to it.[240]We can see no question of law in this challenge. These were matters of factual evaluation for the Tribunal. The Tribunal’s conclusion is not arguably perverse.[241]The Grounds 3 and 4 challenges to the decisions on PD 1.2 and 1.5 raise essentially the same points, and are equally without merit, for the same reasons.[242]We also agree with the Respondent that these grounds are immaterial to the outcome of the appeal. Even if the Tribunal had erred in its findings on s.43B in respect of these three PDs, it went on to find that the s.43F test was failed. The grounds of general application to all six PDs have all failed, and there is no specific remaining challenge to the findings under s.43F in respect of these points.
Ground 5: reasonable belief for the purposes of s.43B
[243]Ground 5 relates only to PD 3.5. It alleges that the Tribunal set the threshold too high for the requisite reasonable belief under s.43B. The Claimant argues that the Tribunal’s reasoning as to the Claimant’s failure to establish a qualifying disclosure is unclear and flawed at paragraphs 1885 to 1891.[244]We do not agree that the Reasons show an error of approach. The Tribunal asked itself the right question (paragraph 1884): whether the Claimant had the requisite reasonable belief that the information disclosed tended to show one or more of the matters in s.43B. It then went on to answer that question, which is an evaluative exercise for the Tribunal.[245]The Claimant criticises the Tribunal for its “pre-occupation” with the phrase “as a result a murderer is free to walk the streets of Manchester”. That is something that the Tribunal found the Claimant cannot reasonably have believed to be true. The Claimant says that this was not part of PD 3.5, but the problem is that the Tribunal found that it was part of the PD (paragraph 1882), and we have held (under Grounds 1, 2 and 6) that it was entitled to do so. Reading PDR3, that allegation is self-evidently central to the disclosure. It first appears in the paragraph immediately following the passage the Claimant relies on, and reference to a murderer walking free is made again further down the same page and again in the Conclusion of PDR3. There can be no doubt what this PD was about: DCI Worth’s incompetence had allowed a murderer to walk free.[246]We are not satisfied that Ground 5 discloses any error of approach on the part of the Tribunal. On proper consideration, this is no more than a perversity point. There is no possible basis to argue that the Tribunal’s conclusions are perverse.[247]In any event, ultimately, this ground goes nowhere. Given that Grounds 1, 2 and 6 have failed (and that Ground 9 also fails, for reasons we address below), there is no remaining challenge to the Tribunal’s findings at the s.43F stage in relation to PD 3.5. Ground 5 does not attack those findings. Accordingly, even if the Tribunal had erred in its conclusions on s.43B in relation to PD 3.5, the PD fails to meet the s.43F test.
Ground 9: Adverse findings as to the Claimant’s credibility
[248]Ground 9 complains that the Tribunal made impermissible adverse credibility findings against the Claimant. It is framed as a challenge to the Tribunal’s finding that the Claimant lied.[249]The pleaded ground in the Grounds of Appeal refers only to PD 1.2. It alleges that the Tribunal made adverse findings as to the Claimant’s honesty in relation to part of PD 1.2, even though the Tribunal was not permitted to know the facts of the child abuse allegation as information derived from a Confidential Unit had not been disclosed. It is said that the Respondent was enabled to exploit restrictions on disclosure to portray the Claimant as dishonest.[250]In her Skeleton Argument, Ms Moss repeats the point about PD 1.2 and adds a further point about findings in relation to PD 3.5. She says that credibility findings were made in error and “wrongly infected all of the Tribunal’s findings against the Claimant”. Orally, she argued that the error in relation to credibility is a reason why the findings on all six PDs are unsafe.[251]Whatever the scope of the point, it is hopeless. As Ms Moss acknowledged, this is a perversity challenge. i) Any perversity challenge to Tribunal’s findings of credibility needs to get over a very high hurdle: the Tribunal hears the evidence and sees the witnesses. It is best placed to make findings of credibility, we are not. ii) In this case, the Tribunal heard a vast amount of evidence over a very long period of hearing days. Nobody could be in a better position to make findings than the Tribunal. iii) It is a hopeless task to pick on one or two findings, in a judgment of over 380 pages, and to argue that the Tribunal erred in its credibility findings as a result. The Tribunal will have taken all of the evidence into account in making findings on credibility. Close analysis of the evidence on one point loses sight of that. iv) It is equally a hopeless task, in a case of this size, to argue that if the Tribunal was wrong on one point it infected their findings as a whole.[252]We accept the Respondent’s submissions that the Tribunal’s treatment of the Claimant’s credibility was nuanced. It did not find him to be a liar or dishonest generally. It is far from clear that it found him to have lied in the two instances the Claimant relies on. At paragraphs 493-496, the Tribunal addressed the Respondent’s submission that the Claimant had lied. It did not go quite that far; it found that the Claimant had exaggerated the facts and made allegations for which there was no foundation. That appears in a lengthy and nuanced passage dealing with the Claimant’s credibility. This was not a decision where the Tribunal made adverse credibility findings and then decided every issue against the Claimant on that basis. It made careful and detailed findings on every issue relating to every PD. The ground as developed by the Claimant on appeal does not identify specific paragraphs of the Reasons in relation to PD 1.2 or PD 3.5 that are said to be perverse. We accept the Respondent’s submission that the PDs under appeal did not fail because of general credibility points, or because of specific credibility points raised under this Ground 9 (as put in its Skeleton Argument at paragraphs 144-154).[253]The specific findings under challenge were not perverse. They were findings that the Tribunal was entitled to make. Even if they were wrong, they would not render unsafe the Tribunal’s conclusions, either on the specific disclosures, or as a whole.
Grounds 7 and 8: The Constructive Dismissal Grounds
[254]The Tribunal’s findings on constructive dismissal are only determinative of an issue in the proceedings if there were protected disclosures. The Tribunal found that there were no protected disclosures. We have found that all of the grounds of appeal against the findings on protected disclosures fail. Accordingly, it is not strictly necessary to address these grounds. However, given that they were fully argued, we will do so briefly.[255]As we have set out above in the outline of the structure of the Reasons, the Tribunal addressed three questions: i) Did the claim depend upon the Claimant establishing a “last straw” that led to his retirement; if so, was there such a last straw? ii) Did the Claimant affirm his contract? iii) Did the Claimant retire in response to the Respondent’s repudiatory breach, or did he intend to retire in any event.[256]The Tribunal proceeded on the assumed basis that the PDs were protected disclosures, and assumed the facts of the detriments, setting them out at paragraphs 2281 to 2335. The Tribunal made findings of fact as to the events leading to the Claimant’s notice of retirement at paragraphs 2336-2403.[257]The Tribunal correctly directed itself as to the applicable legal principles at paragraphs 2404-2425. No criticism is made of those paragraphs.[258]The Tribunal’s discussion and findings are at paragraphs 2426-2501. The Tribunal decided all three points in issue against the Claimant. Success for the Respondent on any one of the three would have been fatal to the constructive dismissal claim. For the appeal to succeed on the basis that the Tribunal erred in deciding that there was no constructive dismissal, the Claimant needs to show that the Tribunal erred on all three points. We will take the points in the order in which the Tribunal addressed them in the Reasons.
Ground 8: retirement was not in response to the alleged repudiatory breach
[259]First, the Tribunal found that the Claimant’s retirement was not in response to the alleged fundamental breach but would have occurred in any event. It reviewed the evidence as to the Claimant’s wish to retire and described the Claimant’s evidence as not painting the full picture. It highlighted a number of issues in the evidence that led it to conclude that the Claimant would have retired in any event and did not retire in response to the alleged repudiatory breaches.[260]That finding is challenged in Ground 8, which alleges that the Tribunal took into account irrelevant information and reached a perverse conclusion. The Claimant argues that the Tribunal did not consider whether the Claimant’s desire to retire was because of the detriments and failed to consider what would have happened if the assumed detriments had not occurred. The Claimant further argues that the Tribunal failed to have regard to the principle that the repudiatory breaches need not be the sole principal reason for resignation, but only one of the factors relied on (by reference to Wright v North Ayrshire Council [2014] ICR 77).[261]We accept the Respondent’s submissions that this ground is no more than a perversity challenge, and it does not meet the high bar for a perversity challenge. The Tribunal began its consideration by stating that it required an examination of all the available evidence. It outlined a number of factors but must be taken as having had regard to all the evidence it had heard and the findings it made elsewhere. The Tribunal made a finding of fact that the Claimant wanted, and always intended, to retire about the same time. In so finding, the Tribunal was clearly making an evaluation of the hypothetical of what would have happened if there had been no breaches. There is nothing in the reasons to indicate that it approached matters on the basis that the breaches had to be the sole or principal reason for retirement. The Tribunal’s conclusions are not perverse.
Ground 7.1: the approach to the “last straw”
[262]The Claimant had advanced two “last straw” arguments. The first was an event on 26 November 2016 when he discovered that his belongings had been boxed up and his office was in use by someone else. The Tribunal considered this alleged last straw at some length. It found (paragraph 2467), that this was not in fact the last straw in response to which the Claimant retired, or if he did, it was not in law such as to amount to a last straw as defined in Kaur v Leeds Teaching Hospitals NHS Trust [2018] IRLR 833. There is no challenge on appeal to that finding.[263]The Tribunal then went on to ask whether there was an alternative last straw. It noted (paragraph 2468) that in paragraph 774 of the Claimant’s closing submissions it was said that the Respondent’s “failure to take action in relation to the subject matter of C’s complaints and/or grievance and/or to cover up the matters raised by him” was an alternative last straw.[264]At paragraph 2470 the Tribunal observed that as the Claimant was going to retire in any event, it did not accept that he resigned in relation to any last straw. It described this last straw as “very wide” and not really articulated by the Claimant. It “boiled down” to failing to address or provide redress for matters raised in the Claimant’s grievance. The Tribunal went on to find that, in the period running up to the notice of retirement, the Respondent was considering his grievance and trying to get him back to work and repair any breakdown in trust and confidence that had occurred. It held that this could not amount to a last straw.[265]The heart of this ground of appeal is that the Tribunal did not have regard to the delays in dealing with the grievance, and with the problems in the paperwork provided to the senior officer dealing with the grievance. It is also alleged that the Tribunal applied the wrong test, as it asked whether the officer dealing with the grievance had evinced an intention not to be bound by the contract: i.e. it had required the last straw relied on to be a breach itself, rather than something that contributed to the breach.[266]We do not accept these criticisms of the Tribunal’s decision. The Tribunal had properly directed itself as to the relevant legal principles as to the last straw. We do not accept that, by reference to evincing an intention not to be bound, it was requiring the last straw to be a breach in itself. In the section on last straw, it was clearly considering whether there was a last straw as required by the relevant authorities. It found there was not. It did so based upon factual findings deriving from the evidence it heard. We do not accept that the Tribunal was obliged to reach a different conclusion based on delay and paperwork problems, nor specifically to address those issues in its reasons. As the Tribunal correctly identified, the argument it considered was a poorly articulated alternative to a last straw argument it had already rejected, and the whole last straw issue was, in any event, academic, given that the constructive dismissal claim had already failed on the causation/reason for resignation issue. In those circumstances, the Tribunal dealt with the issue appropriately briefly. There is no flaw in its reasoning, nor is its conclusion perverse.
Ground 7.2: Affirmation
[267]From paragraph 2475, the Tribunal considered whether the Claimant had affirmed his contract. The Respondent alleged that the Claimant had affirmed his contract by waiting for seven months to resign (from the date when he was removed as officer in charge of a particular operation), by seeking to negotiate his retirement benefits, and by seeking the restoration of full pay while off sick.[268]The Tribunal directed itself as to the authorities on affirmation. It considered delay in resignation, acceptance of sick pay, the successful negotiation of a restoration of full pay during absence. It correctly identified that none of those matters were determinative, but it was a matter of factual assessment in the circumstances. It held that in all the circumstances, the Claimant’s conduct amounted to an affirmation.[269]The Claimant’s criticism is that the Tribunal did not consider certain circumstances and took some irrelevant factors into account. We do not accept that. The Tribunal made a permissible assessment of the factual circumstances. It cannot be said that any of the factors it relied on were irrelevant. Nor is it clear that the Tribunal disregarded relevant material. Its reasons are relatively brief, but by this stage of the case, it had already rejected the entirety of the protected disclosure case, and also two essential arguments in the constructive dismissal claim. We have no doubt that it had in mind all of the evidence and argument it had heard. The Tribunal reached a permissible conclusion which overlaps, to an extent, with the findings on last straw and causation. By the time of the failed mediation between the parties on 6 October 2016, the Claimant might be expected to have resigned, claiming constructive dismissal. As the Tribunal said (paragraph 2498) the Claimant already believed the Respondent to have unduly delayed in his grievance, a delay which the Tribunal found did not amount to a last straw. He did not resign after 6 October until 25 November. He re-engaged with the further conduct of the grievance, only later to change his mind and resign without giving the process time to be completed. He continued to seek to restore his full pay and benefits. There was material upon which the Tribunal was entitled to conclude that there had been an affirmation.[270]Even if the Tribunal had erred on this point, this could make no difference to the outcome, given that the Tribunal had found against the Claimant on causation and “last straw”. This ground fails, as do all the other grounds.
Conclusion
[271]In conclusion, the appeal fails on all grounds: i) In considering the question of whether the Claimant made protected disclosures, the Tribunal was entitled to consider material in the Claimant’s PDRs that it regarded as closely related to the passages relied on by the Claimant. It made no procedural error in doing so (Ground 1). It was not bound, as a matter of law, only to consider the material relied on by the Claimant (Ground 2). ii) The Tribunal did not err in its approach to the s.43F question of whether the Claimant reasonably believed the information he disclosed and any allegation contained within it were substantially true. The Tribunal did not apply a 95% true test. It made a qualitative evaluation, looking at the meaning and effect of the disclosures in their proper context. Its conclusions were matters of factual evaluation that they were entitled to reach (Ground 6). iii) The Tribunal did not err in its treatment of delay as a factor relevant to assessing reasonable belief (Grounds 3 and 4). iv) The Tribunal did not err in its assessment of reasonable belief under s.43B (Ground 5); nor in its assessment of the Claimant’s credibility (Ground 9). v) Having dealt with those grounds, the challenge to the findings on protected disclosures have all failed. The constructive dismissal grounds are academic. However, Grounds 7 and 8 disclose no error of law.[272]A further ground, as to the interpretation of s.43F did not, contrary to the Claimant’s argument, fall within Ground 6 as it raised a wholly different point. The application to amend, made in reply submissions on the fourth day of the hearing, was refused.