Babula v Waltham Forest College [2006] EWCA Civ 1154

Case No B5/2006/1200[2006] EWCA Civ 1154
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE PETER CLARK)
Venue Royal Courts of JusticeDate Friday, 21 st July 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE BUXTON
LORD JUSTICE MAURICE KAY
Between
DR MICHAEL BABULAAppellant- v -
Between
WALTHAM FOREST COLLEGERespondent
(DAR Transcript ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MS C RAYNER (instructed by Messrs Luqmani Thompson & Partners, London, N22 6BB) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
J U D G M E N T

LORD JUSTICE MAURICE KAY:

[1]This is a renewed application for permission to appeal, Mummery LJ having refused permission on the papers. The case is one which is described in the vernacular as a whistle-blowing case. Mr Babula worked as a lecturer at Waltham Forest College for some months in 2004 before he resigned on 29 August 2004. He claims that he was constructively dismissed, that the dismissal was unfair and that he had suffered a detriment at the hands of Mrs Lambert, the Head of School, on the grounds that he had made a protected disclosure contrary to section 47B of the Employment Rights Act 1996.[2]Very briefly, the background to the case is that, soon after he arrived at the College, Mr Babula was asked to take a particular class. He became concerned that the class seemed not to be up to speed so far as the course was concerned. Upon enquiry he was told by students that his predecessor, Mr Jalil, had divided the class into Islamic and non-Islamic groups, turned his back on the non-Islamic students and had in effect lectured religious studies to the Islamic students in what was a business studies course. The students expressed concern. They also imparted the information that Mr Jalil had told the Muslin students that he wished that a September 11th incident would occur in London and had indicated an acceptance and happiness of the events of 9/11.[3]Mr Babula was concerned. He spoke to a supervisor, and ultimately to Mrs Lambert. He discovered that she had been aware of the allegation for some period of time, but had taken no action. He thought that urgent action was necessary, was frustrated by the lack of it, and as an American citizen then sought the advice of the CIA and the FBI by e-mail. He was encouraged to report the matter to the police in London, which he duly did at Walthamstow Police Station. He eventually resigned from the College claiming to have been constructively dismissed.[4]That is a very brief summary of the facts as set out in the application. At this stage no evidence has been heard, because the matter comes to this court by way of an application for permission to appeal a decision of the Employment Appeal Tribunal, which had dismissed an appeal arising out of a preliminary hearing in the Employment Tribunal. Accordingly the Tribunals below, and this court, deal with the case at this stage on the basis of the pleaded facts.[5]The question of a preliminary issue arose because the point was taken by the College as to whether or not there had been, or could have been, a protected disclosure in the circumstances. The pleaded case for Mr Babula was that he had made a qualifying disclosure under section 43B because he reasonably believed that a criminal offence of incitement to racial hatred under the Public Order Act 1986 had been committed and was likely to be committed again in the future. Moreover, he reasonably believed that Mrs Lambert, with her previous knowledge of the situation, was unlikely to report the commission of the aforesaid criminal offence to the authorities, and had failed therefore to comply with a legal obligation to report such an offence. It was also suggested that she had failed to comply with her contractual obligations by failing to observe the equal opportunities policy that obtained in the College, which was designed to deal with matters of race equality.[6]Section 43B provides:
“(1) In this Part a ‘qualifying disclosure’ means any disclosure of information which, in the reasonable belief of the worker making the disclosure, 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”
. Section 103A then provides: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”. (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”.[7]The preliminary issue about a qualifying disclosure and a protected disclosure was fully argued in the Employment Tribunal. The difficulty faced by Mr Babula, so far as the Tribunal was concerned, was that having put his case by reference to the offence of incitement to racial hatred and by reference to the equal opportunities policy on race equality issues, he was confronted with a finding that his complaints were in law not ones of incitement to racial hatred or do with race at all, but were to do with possible incitement to religious hatred and religious discrimination. Accordingly, he was not able to prove the offence upon which he relied. The underlying preliminary issue relates to the proper construction of section 43B. The reason Mr Babula failed in his application was that the Employment Tribunal considered itself bound by the case of Kraus v Penna, a decision of the Employment Appeal Tribunal in which Cox J, giving the judgement of the Tribunal, stated: “However, we agree with the submission … that the worker’s reasonable belief in section 43B(1) relates to the information which he is disclosing and not to the existence of a legal obligation which does not actually exist. In other words, if the employers are under no legal obligation, as a matter of law, a worker cannot claim the protection of this legislation by claiming that he reasonably believed that they were. His belief and the reasonableness of it in our view relates to the factual information in his possession, namely what he perceives to be the facts and the basis on which he considers it reasonable to rely upon them. This can only properly be tested against the background of the legal obligation, ‘to which (the employer or other person) is subject’. If there is no obligation to which they are actually are subject, the worker’s suggestion that he reasonably believed that they were cannot render the disclosure a protected one within section 43A and 43B”.[8]The Employment Tribunal in the present case observed that Kraus v Penna was concerned with section 43B(1)(b), but concluded that the reasoning would apply also to section 43B(1)(a) concerning the commission of criminal offences. Because of the difficulty arising from the facts that the underlying problem on the pleaded case was really one of religion rather than race, and because the Employment Appeal Tribunal in Kraus v Penna had taken the view of the proper construction of section 43B(1) that it had, Mr Babula’s case failed in the Tribunal. He could not establish that the facts would constitute the offence of inciting racial hatred, nor that they would contravene the equal opportunities policy, which was limited to racial matters. With great reluctance, the chairman, sitting alone, faithfully followed Kraus v Penna and resolved the preliminary issues in favour of the College. In so doing, he said this:
“Learned commentators have criticised the decision in Kraus v Penna as departing from the spirit of legislation intended to encourage ordinary workers to come forward on the basis of their reasonable beliefs, not their legal clairvoyance”
. The Employment Appeal Tribunal also followed its own earlier decision, as one would expect.[9]The question now arises whether Mr Babula would have a real prospect of success in this court on this question of construction of the statute, or whether there is some other compelling reason why the appeal should be heard. The matter has not been considered at this level before. It is an important matter, as the Employment Tribunal Chairman explained. In my judgement, to put it at its lowest, the construction adopted by Cox J in the Employment Appeal Tribunal is not the only tenable construction of the words of the statute. It may be that applying a purposive construction, a broader approach would be justifiable. I say no more about that, or about the prospects of success in the underlying litigation, even if Mr Babula were to succeed in obtaining a ruling in his favour on the issue of construction. It is sufficient to say at this stage that upon that issue, in my judgement, he has a real, in the sense of not merely a fanciful, prospect of success; and there is in any event another compelling reason why the appeal should be heard, that is that this court may give a definitive ruling on the correct interpretation, in the light of the criticisms of the construction that has been adopted in the Employment Appeal Tribunal below.[10]For those reasons, for my part I would grant permission.

LORD JUSTICE BUXTON: I agree. The jurisprudence of Kraus v Penna clearly merits further consideration by this court. Dr Babula will have heard what my Lord has said about the limited nature of this permission and the fact that it does not touch the eventual prospects of success, and he will no doubt be advised in those terms. Since the point appears to be comparatively short, one of construction, the time limit for the appeal will be three hours. The appeal to be heard by court of three, which may include a judge of the High Court and should preferably include a judge with experience of the Employment Appeal Tribunal. We give permission to counsel for Mr Babula to revise her skeleton argument, if so advised, within 14 days to take account of any wider considerations relating to Kraus v Penna that have since become apparent to her.

Order

Application granted.