The EAT case of Goode v Marks & Spencer Plc serves as a reminder firstly of what constitutes a qualifying disclosure and secondly that, in order to rely on the whistleblowing provisions, information disclosed to the press must be substantially the same information as that provided to the employer.

Marks & Spencer submitted a proposal to its staff representative body to make changes to their discretionary enhanced redundancy scheme. The proposals were forwarded to Mr Goode who told his line manager that he thought the proposals were “disgusting”. In response his line manager suggested he raise his concerns with the staff representatives.

Subsequently Mr Goode emailed the proposals to The Times newspaper along with a letter entitled “M&S deal another blow to staff”. Mr Goode was identified as being responsible for leaking the proposals to the press and, after disciplinary proceedings, was dismissed.

Mr Goode brought a claim in the Employment Tribunal for automatic unfair dismissal on the basis that he had been dismissed as a result of making a protected disclosure. The Tribunal found that there had been no qualifying disclosure and that in any event the information provided to the press was not substantially the same as that provided to his employer.

The EAT upheld the Tribunal’s decision for the following reasons:

  • The Tribunal was entitled to conclude that what was disclosed to Mr Goode’s line manager was at the very most only information and a statement of his state of mind;
  • There was nothing in Marks & Spencer’s proposals which showed that they intended to breach any legal obligation – the document was simply a proposal for changing the terms of a discretionary scheme and had been sent to staff representatives for consultation;
  • A statement of his state of mind about proposals to change a discretionary scheme could not amount to a qualifying disclosure;
  • Even if Mr Goode’s statement to his line manager had constituted a qualifying disclosure the information he leaked to the press was not substantially the same to the statement he made to his line manager; and
  • In any event, the EAT found that the information disclosed to the press was not a qualifying disclosure as the information contained within the email and its enclosures was not enough to show that Mr Goode could form a reasonable belief that Marks & Spencer was likely to fail to comply with any of its legal obligations.