In Wharton v Leeds City Council a local authority curator was dismissed after six months in the job, his employers saying he had failed his probationary period on performance grounds. He claimed that he had been automatically unfairly dismissed for making a protected whistleblowing disclosure. He had alleged that he was being required to work contrary to the aims set out in the employer's Arts Council funding agreement – in other words, the employer was not complying with its legal obligations in relation to funding.
The Employment Tribunal held, at a preliminary hearing, that his disclosures were not capable of amounting to a protected disclosure under the whistleblowing legislation as they were not "information tending to show the breach of a legal obligation". They were complaints about the employer's interpretation of its policy, not identification of a breach of a legal obligation in terms of misuse of funds. In addition, the claimant could not say he had a "reasonable belief" that there had been a breach as he had not actually seen the funding agreement.
The EAT allowed the appeal and sent the case to another tribunal for consideration. The Tribunal was wrong on two counts:
- It had not addressed the question of whether the information produced to the Tribunal showed a link between his job description, the employer's strategic plan and funding bid and its arrangements with the Arts Council. There was "just about" enough information to suggest he was raising the point that there was an alleged breach of the funding agreement, even though the EAT put the Tribunal's failure to spot this down to the "very unfortunate" way in which the employee (who was unrepresented) had presented his case.
- The Tribunal was also wrong to rule that the employee could not have a reasonable belief that there had been a breach of a legal obligation when he had not seen the funding agreement. The employee could have reached that belief if, rightly or wrongly, he believed that the job description, the funding bid or the strategic policies reflected obligations contained in the funding agreement.