Simon Gorton KC successfully appeared for the Chief Constable of Greater Manchester Police in a whistleblowing claim brought by Mr P Jackson, a former senior police officer.
The case is of interest, not necessarily because it is a 367-page judgment, which followed a claim commencing on 1 November 2021 that did not conclude with the parties until 16 May 2023 after 102 days of evidence and submissions, but that three fundamental principles are explored in this first instance judgment. These will be of relevance to many whistleblowing claims. The first is that this is a section 43F disclosure claim, namely that the claimant relied solely on disclosures made externally to the IPCC [55§13], who are a prescribed body. This involves the higher test which requires the information disclosed, and any allegation contained in it, are reasonably believed to be “substantially true”. Whilst it is noted that in the final submissions it was argued that the claimant was also seeking to rely upon a section 43C claim as well, a reader will see that the List of Issues became the Claimant’s pleaded case [58§24]. Nevertheless, the Tribunal were prepared to read into the substantive documents and did consider the surrounding language used in the documentary disclosures when making their findings. Whilst this is not uncommon, this provides insight into how complex claims require early clarity for the Tribunal to properly understand and engage in what is the substance of each disclosure being made and likewise, the Respondent’s position on them.
Second, of specific interest is the application of Korashi v Aberfawe Uro Morgannwg University Local Area Health Board [2012] IRLR 4 and the reasonableness of belief required of professional or more experienced workers who are whistleblowers. This case grapples with the fact that the subjective reasonableness of the belief in a disclosure, when it is being objectively considered, entitled the Tribunal to take into account the circumstances of the discloser (here his seniority) and the fact that where it is an external disclosure the impact of the “substantially true” test, being qualitative in nature, manifests itself as a matter of common sense that more will be expected for the disclosure and belief to meet that test – when one reads more, that is a question of qualitative substance and veracity.
Third, it is of interest to read how the Tribunal approached a claim where the Claimant did not seek to link or “pair” disclosures to asserted detriments [317 Ch V]. In many cases there can be a focus on establishing a disclosure and then in recording and setting out the detriment, but the importance of establishing the link between the two – when considering not just the prima facie case placed upon the Claimant, but in assisting the Tribunal in their role, cannot be underestimated. Likewise, properly challenging the link between the two, indeed in some instances even the knowledge of the putative individual as to the substance of the disclosure, can be key. It is of interest that the Tribunal could find no reason to go on to determine the “31 (or so) alleged detriments for purely academic purposes” [322§4].
Finally, practically, with those addressing complex claims, readers will note the “Master Tracker” which through various colour coded columns tracked the status of each of the 287 allegations made in the case. This was prepared by the Respondent and provided a map for how the evidence should be interpreted and the usefulness of these in both preparing and representing parties is well known to members of OSC.
This case summary was written by Jack Mitchell.
Finally, it is nice to read that the book I co-author Whistleblowing Law and Practice (Fourth Edition) was of assistance to the Tribunal [79§88, 178§56 and 194§5] and doesn’t just gather dust on academic shelves.
Click here to read the full judgment.
