"70…..taking Dr Armes' case at its highest, I cannot and will not say that the alleged protected disclosures he relies on have no reasonable prospects of success"
"100 Health and safety cases. (1) 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—…. (c) being an employee at a place where— (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee, but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,"
"all concerned with the Alere-i product were alive to and receptive of the concerns expressed by Dr Armes and sought to address them as part of its general concern to address issues of contamination. His conduct in raising concerns is something which he would be expected to do. Ms Qlu engaged with his concerns."
"In any event, the Claimant does state at paragraph 23.5 of the Particulars of Claim that he had a lengthy telephone conversation with Mr Haas. That supports the Respondents' case that they engaged with matters raised by Dr Armes."
"45. The relevant Respondents will say that it is apparent from the documents on which the Claimant relies that none of them was or contained qualifying disclosures or health and safety disclosures and the case that any of them did should be struck out on the basis of what appears on the face of the documents. In consequence., the Claimant's case that he was dismissed or suffered detriment for making protected disclosures or health and safety disclosures should be struck out."
"3. The Respondents' application to strike out elements of Dr Armes' as set out in paragraph 45 of the amended response to his claim."
"1. The Respondents' application to strike out the (sic) Dr Armes' claims arising out of alleged protected disclosures and health and safety disclosures prior to his dismissal fails."
"11. Mr Nichols (sic) in his skeleton argument objected to the witness statements. I need not go into his reasons for doing so, as the issue was sensibly resolved by the parties agreeing that I should read the witness statements, but the Claimants will not be called to give evidence and Mr Nicholls will make his oral submissions having regard to the content of the witness statements."
"49. The disclosures need not be factually correct, nor amount to a breach of a legal obligation, criminal offence or endangerment of health and safety, provided that the claimant reasonably believed them to be so, see Babula v Waltham Forrest (sic) College[2007] IRLR 346 ."
"50. The requirement is for the disclosure of information; i.e. conveying facts. It is not enough to make an allegation, see Cavendish Munro v GeduldUKEAT/0195/09 . The mere expression of an opinion does not tend to show that the Respondent is likely to be in breach of any legal obligation, see Goode v Marks & Spencer PicUKEAT/0442/09 . However, there is a need for care; information can be disclosed within an allegation. The concept of "information" is capable of covering statements which might also be characterised as allegations. The correct question is to ask whether the disclosure contained information of sufficient factual content and specificity that it is capable of showing one of the matters listed in section 43B(1). This is a matter of evaluative judgment in light of the facts and the context in which it was made, see Kilraine v London Borough of Wandsworth[2018] ICR 1850 CA."
"51. The expression, "reasonable belief" must be considered having regard to the personal circumstances of the discloser, in particular their "inside knowledge", what they know about the field in which they work, about their employer , about the subject matter to which the disclosure relates. In other words, the test is subjective , see Korashi v Abertawe Bro Morgannwg University Local Health Board[2012] IRLR 4 ."
"57. Whilst I am only being asked to strike out part of Dr Armes claims, that flowing from alleged disclosures prior to dismissal, the above principles equally apply. It is of course right to say, that if a claimant did not make protected disclosures, a whistleblowing case cannot even get off the ground and should be struck out."
"59. Mr Nicholls also argues that specifics are required as to what laws or legal obligations may be breached, which the emails lack. He referred me to paragraph 33 of the judgment of Mr Justice Elias, (as he then was) in Fincham vHM Prison ServiceUKEAT/0925/01 : ". . . there must in our view be some disclosure which actually identifies, albeit not in strict legal language, the breach of legal obligation on which the employer is relying. " 60. Mr Mehta points out that was a very different case from this one and referred me to earlier paragraphs, (1, 2, 21 , 24, 25 and 30) . He was right to do so. The disclosures were in relation to health and safety endangerment and breach of the implied term to maintain trust and confidence. Of, "
"64. I agree that much of the correspondence relied on as amounting to protected disclosures is with regard to commercial matters, Dr Armes historic issues with Alere and his concerns about how he is going to be treated by the new owners of the business in the future. 65. However, Dr Armes case is that a device marketed by Alere to identify flu could give false readings. It could give a false positive, leading to inappropriate medication being prescribed to the vulnerable. It could give a false negative, resulting in illness not being diagnosed and treated, or such being delayed. He said the product did not conform to the description on the basis of which it was sold and licenced, in breach of regulatory requirements in the US, (he lists the regulations and legal obligations potentially breached at paragraph 7 of his witness statement, running to 3 1/2 pages). 66. Dr Armes says that these matters were raised by him with the management of the new owners of the business at a conference on17 January 2018 and that he reiterated his points in his email of that day, (page 347, first disclosure). In that email he referred to a, "
"Striking out 37.— (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success….;"
"The self-evident aim of the provisions is to protect employees from unfair treatment (ie 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…."
"9. It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held."
"35. (…) In order for a statement or disclosure to be a qualifying disclosure according to this language, 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 )."
"36. Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case . It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters."
"41. 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 in the Cavendish Munro case [at paragraph 24], the worker brings his manager down to a particular ward in a hospital, gestures to sharps left lying around and says "
"36 (…) As explained by Underhill LJ in Chesterton Global Ltd v Nurmohamed ….[at paragraph 8], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief."
"79. It is also, I think, significant that section 43B(1) uses the phrase "tends to show" not "shows"
"8. (1) The definition has both a subjective and an objective element: …. The subjective element is that the worker must believe that the information disclosed tends to show one of the six matters listed in sub-section (1). The objective element is that that belief must be reasonable."
"8. (2) A belief may be reasonable even if it is wrong. That is well illustrated by the facts of Babula , where an employee disclosed information about what he believed to be an act of criminal incitement to religious hatred, which would fall within head (a) of section 43B (1). There was in fact at the time no such offence, but it was held that the disclosure nonetheless qualified because it was reasonable for the employee to believe that there was."
"28. Second, and hardly moving much further from the obvious, element (b) in that exercise requires the tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest; and that is perhaps particularly so given that that question is of its nature so broad-textured. The parties in their oral submissions referred both to the "range of reasonable responses" approach applied in considering whether a dismissal is unfair under Part X of the 1996 Act and to "the Wednesbury approach" employed in (some) public law cases. Of course, we are in essentially the same territory, but I do not believe that resort to tests formulated in different contexts is helpful. All that matters is that the Tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker. That does not mean that it is illegitimate for the tribunal to form its own view on that question, as part of its thinking – that is indeed often difficult to avoid – but only that that view is not as such determinative."
"61. (…) What is required is a belief. Belief seems to us to be entirely centred upon a subjective consideration of what was in the mind of the discloser. That again seems to be a fairly low threshold. No doubt because of that Parliament inserted a filter which is the word "reasonable". 62. This filter appears in many areas of the law. It requires consideration of the personal circumstances facing the relevant person at the time. Bringing it into our own case, it requires consideration of what a staff grade O&G doctor knows and ought to know about the circumstances of the matters disclosed. To take a simple example: a healthy young man who is taken into hospital for an orthopaedic athletic injury should not die on the operating table. A whistle-blower who says that that tends to show a breach of duty is required to demonstrate that such belief is reasonable. On the other hand, a surgeon who knows the risk of such procedure and possibly the results of meta-analysis of such procedure is in a good position to evaluate whether there has been such a breach. While it might be reasonable for our lay observer to believe that such death from a simple procedure was the product of a breach of duty, an experienced surgeon might take an entirely different view of what was reasonable given what further information he or she knows about what happened at the table. So in our judgment what is reasonable in s43B involves of course an objective standard - that is the whole point of the use of the adjective reasonable – and its application to the personal circumstances of the discloser. It works both ways. Our lay observer must expect to be tested on the reasonableness of his belief that some surgical procedure has gone wrong is a breach of duty. Our consultant surgeon is entitled to respect for his view, knowing what he does from his experience and training, but is expected to look at all the material including the records before making such a disclosure. To bring this back to our own case, many whistle-blowers are insiders. That means that they are so much more informed about the goings-on of the organisation of which they make complaint than outsiders, and that that insight entitles their views to respect. Since the test is their "reasonable" belief, that belief must be subject to what a person in their position would reasonably believe to be wrong-doing."
"5. Finally, we considered whether the Applicant's disclosures or any of them tended to show a failure by the Respondent to comply with any of its legal obligations. We find that they did not. Almost every day in almost every workplace employee complain to managers of their treatment by other employees, often with good reason. Indeed, what has been revealed here appears to have been a hotbed of malice and petty spitefulness. It cannot possibly be the case, however, that each complaint tends to show a failure by the employer to comply with a legal obligation. The legal requirement on the part of an employer not to breach trust and confidence between employer and employee is not broken by an employer every time one employee behaves badly to another. It cannot be within the compass of the statutory provisions contained in sections 43B and 47B of the Employment Rights Act that every time there is bad behaviour by one person to another on works premises, the aggrieved employee may complain of it and then obtain the protection of the statute. 6. We do not consider that the wording of section 43B of the Employment Rights Act in any event allows Tribunals to look at disclosures collectively. Each one must be looked at individually and none of these complaints made by the Applicant to her managers was such that it tended to show a failure to comply with the implied term of trust and confidence which must exist in every contract of employment."
"32. Mr Cramsie also contends that the Tribunal erred in law in paragraph 5 of its decision when it concluded that there had been no breach of the duty of trust and confidence. He said the Tribunal were wrong to require that disclosures must be looked at individually . He submitted that they could and should be looked at collectively in an appropriate case . In our view there is no valid criticism that can be made at paragraph 5. If an employee complains on various occasions about the conduct of other employees that is not of itself demonstrating any breach of any duty by the employer at all. Of course, there can be a breach of trust and confidence resulting from a whole series of acts of inattention or carelessness or any inconsiderate behaviour by an employer over a period of time. 33. But there must in our view be some disclosure which actually identifies, albeit not in strict legal language, the breach of legal obligation on which the employers (sic) is relying . In this case the Tribunal found none. We have no reason to conclude that they erred in law in reaching that conclusion."
"40……He also told Mr Edmundson and the headmaster, after the event, what he had done. That of course involved not merely informing them that he had broken into the system but perhaps more pertinently, as far as protected disclosure is concerned, that the system had been broken into."
"41..Mr Chaudhuri, for the school, accepted, as we understand it, that the latter was information tending to show that a breach of a legal obligation was likely to occur. We think that is plainly so and it does not lose that characterisation merely because it is the informer himself who broke into the system. It is true that the claimant did not in terms identify any specific legal obligation, and no doubt he would not have been able to recite chapter and verse at the time. But it would have been obvious to all that the concern was that private information, and sensitive information about pupils, could get into the wrong hands, and it was appreciated that this could give rise to a potential legal liability "
"60. In its section on the law, the ET also correctly noted the authorities which make clear, in respect of section 43B(1)(b), that the disclosure does not need to identify in strict legal language the legal obligation on which the whistle-blower is relying; and that the potential legal liability may be obvious and/or a matter of common sense from the information provided : paragraphs 16 to 17 citing Fincham and Bolton School . That the ET took the same correct approach in respect of the other categories in section 43B(1) is apparent e.g. from the "common sense" approach which it took in reaching its conclusion that disclosures 3 and 18 were protected: paragraphs 49 and 128."
"62. In any event, I see no basis on which the ET could have come to any different conclusion on the material and case before it. As to section 43B(1)(b), the Claimant's case was that it was "obvious" that the information tended to show breach of a legal obligation (Schedule) and/or that in his reasonable belief it tended to show data protection breaches (POC and FBP). An assertion of obviousness has to be tested against the ability to identify, before the Tribunal, the legal obligation(s) in question. The ET rightly concluded that the letter did not refer explicitly or implicitly to breach of data protection legislation; nor was any breach of legal obligation obvious. There was nothing in the case before the Tribunal which provided anything more specific."
"44. In my judgment, it is not possible, on the facts found by the Employment Tribunal, to say either that the Claimant made a disclosure covered by section 43B(1)(b) of the ERA 1996 where the breach of legal obligation was obvious, or that he identified, sufficiently or at all, within the disclosure itself the legal obligation said to have been breached. The Tribunal's findings were that the Claimant had complained about "working practices and procedures more generally". 45. That conclusion is sufficient to dispose of the Appeal, on the basis that there was no material error of law in the Employment Tribunal's finding that the Claimant had not made a qualifying disclosure. However, I consider that Mr Laddie's submission on the second aspect of this issue is also well-founded…."
"Thanks, Katherine, for organising such a productive event. I will endeavour to help construct the white paper items we discussed. I also think that you now have the black swan firmly in your sites and 1 would continue to reinforce my view that this is where you should focus your stabilisation efforts. I think Myron's extreme view should not be sneered at and that in the room today you saw key R&D seasoned leaders be honest about this, probably for the first time in front at the new regime. We can help. Best Niall"
"3.5 What I meant by "black swan" was a reference to the earlier group discussions at the meeting in Scarborough about R&D and product development. At that meeting, I raised my concerns that the lack of forward planning to deal with sudden and potentially unanticipated catastrophic product events (i.e. a black swan event) could be very disruptive to the development of products in the development cycle , such as tests to be launched on the Alere i, or indeed other products. During the same meeting the contamination problems were subsequently raised and therefore, in my email to Ms Qiu I suggested that the contamination problem faced by the Alere i could be an example of just such an event. I suggested to Ms Qiu that all efforts should be focused fixing the contamination problems."
"33. 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."
"2.16. In a call later in February 2018, the matter was brought up by Mr Haas, to whom the matter had clearly been escalated by Ms Qui. I expressed my view that a further generation of products would be necessary (this was protected disclosure and health and safety disclosure 2) should be Alere I be unable to be maintained on the market. The attitude of Mr Haas was that the problem was 'not worse than our competitors'. I found this attitude to be very complacent."
"Follow up call with Jeff Haas: January 2018: second protected disclosure 23.5 Later in January I had a follow up call with Jeff Haas and it was attended also by Katharine Qui who remained silent throughout the entire hour-long call after introductions. I did not again call out the contamination matter directly , but it was referred to by Jeff Haas of his own volition who had earlier not responded to my email regarding "black swan events". 23.6 In this call I disclosed my view, in opposition to the view given by Mr Haas on that call), that a second generation of devices would be a necessary development and Investment by the company should the Alere i turn out to be unable to be maintained in the market . 23.7 When the topic of the Alere i having risks came up Mr Haas merely commented that the contamination issue was "not worse than that of our competitors"."
"3.8 (… ) I did not again call out the contamination matter directly , but it was referred to by Mr Haas of his own volition. In this call, I disclosed my view, in opposition to the view given by Mr Haas on that call, that a second generation of devices would be a necessary development and investment by the company should the Alere i turn out to be unable to be maintained in the market . 3.9 Mr Haas voiced his concerns that it may not be economically viable to invest in a second product when there already existed a good enough product (the Alere i). I accepted the logic of his argument, but stated that, on the other hand it would be justifiable to invest in a second product if there were significant risks with the first product. 3.10 I stressed that I thought that there was risk that the product could not remain in the market, although on that occasion, I never specified what my concern was, and I did not use the term "contamination "
"Isothermal technology (…) My thoughts are that the difference between the past of molecular and possible concerns of "the today" (alere-i) revolve mainly around a couple of key issues. These are : (1) Use setting, and (2) isothermal technology. (1) Use setting. Clearly the CLIA setting poses additional risks for mis-use , and/or in this case perhaps more importantly failure to detect possible ongoing changes in system performance: a. Clearly the product needs to be particularly well designed to prevent amplicon release when one assumes the end-users are unskilled. (…) b. (...) Thus a release event poses much much greater risk of (permanently) compromising later results and clean-ups needs to be ultra-effective. c. Detection - How does one know that the work environment is contaminated? If it has been successfully detected, how does one know it is clean? Unlike a skilled laboratory where operatives who may more readily detect that something is amiss, this is quite likely to be missed in the CLIA environment unless it is so awful that everything invalidates or is positive. In reality a much worse more complex scenario might well evolve – local area contamination leads to sporadic transfer of amplicons into the system so that false positive (or negative) results are merely a statistical distortion from the true rates of infection. Say 5% of the time a contaminated patch is inadvertently transferred into the new test. This might not get noticed but compromises the system in a clinically meaningful manner . Furthermore the current test protocols are not designed to reliably detect such sporadic events – a single negative and positive run in the morning does not prove that the environment is not affected. One might need to do 100 negative runs to get sufficient data to verify site cleanliness for example (see the attached review document referencing the problem of confirming clean-up)."
"All in all I have to say that I am concerned about the risks evident to me today when combined with the available (admittedly limited) data. Perhaps others take a different view on the risks, and the actual fully analysed data will be the proof of how significant a problem there is or could be. I am however obligated to set out my concerns which pose both a business risk but also, more importantly, potentially a regulatory one . "
"2.18 During March, April and into early May 2018 I sent several further emails. These emails comprised my fourth protected disclosure and health and safety disclosure. …"
"28.1 During March, April and into early May l sent several emails to Mr Haas, and limited responses were received, in these communications I continued to request insight into Abbott's response to the issues raised . 28.2 I contend that these emails were protected disclosure and health and safety disclosure 4."