The EAT has overturned the Tribunal’s decision to strike out a whistleblowing claim in Morgan -v- Royal Mencap Society 2016, holding that a complaint about an individual employee’s cramped working conditions could potentially be in the public interest and therefore a protected disclosure for whistleblowing purposes.
Ms Morgan brought a claim alleging, among other things, that she had been automatically unfairly dismissed and subjected to detriment because of her public interest disclosures and complaints about health and safety. The disclosures upon which she sought to rely related to her cramped working conditions (which were exacerbating a knee injury that she had suffered). In her particulars of complaint, she stated that she believed her disclosures were in the public interest because Mencap is a charity and the public would be interested to know how it treated its employees, and further the issues she raised presented a threat to the health and safety of others. The Tribunal rejected this, holding that Ms Morgan could not have had a reasonable belief that these disclosures were in the public interest, and her claim was struck out.
On appeal, the EAT held that there is a particularly high threshold for strike out in whistleblowing claims, as it will rarely be appropriate to strike out the claim without hearing the evidence. Whether Ms Morgan had a reasonable belief that her disclosure was in the public interest was a fact-sensitive question. Ms Morgan did not give oral evidence at first instance, meaning that the Tribunal was obliged to take her case at its highest. In the EAT’s view, the Tribunal had failed to do so, and it was possible that oral evidence could show that Ms Morgan did have the necessary relevant belief. The case was duly remitted to a freshly constituted Tribunal for the substantive hearing.