In Morgan v Royal Mencap Society, the EAT has reminded us of the difficulty of striking out claims at a preliminary hearing, this time in the context of whether an employee’s complaints about her cramped working conditions could meet the ‘public interest’ requirement of a protected disclosure under the ‘whistleblowing’ regime.

Facts

Ms Morgan was a former employee of the Royal Mencap Society. Following her resignation she brought numerous claims against Mencap including claims that she had been subjected to various detriments because of complaints she had made.

Ms Morgan claimed that two complaints she had made, that her cramped working conditions were adversely affecting her injured knee and causing lower back pain amounted to ‘protected disclosures’.

As many of you will already be aware, since legislative amendments in June 2013 there is now a requirement for any ‘protected disclosures’ to be ‘in the public interest’. The change to the legislation was made in response to a number of claims being based around employees’ complaints concerning breaches of their own terms and conditions of employment, which it was felt was outside the intended scope of the legislation. An employee now has to demonstrate that he or she ‘reasonably believed’ that his or her complaints were made in the public interest.      

In this instance, Ms Morgan explained that she believed her disclosures were in the public interest because Mencap is a charity, financially supported by the public, and the public would therefore be interested to know how the charity treated its employees. She further argued that the issues she raised potentially presented a threat to the health and safety of others.

Perhaps unsurprisingly Mencap applied to strike out Ms Morgan’s whistleblowing-related claims on the basis they did not meet the ‘public interest’ test. These issues were considered at a preliminary hearing. Crucially, at the hearing limited oral evidence was presented and none at all from Ms Morgan.

The employment judge concluded that Ms Morgan’s disclosures were not a matter of public interest and it could not be Ms Morgan’s reasonable belief that they were. He therefore dismissed the whistleblowing claims.

Ms Morgan appealed and her appeal was successful, largely on the basis that it was wrong to strike out the claim without having heard Ms Morgan’s oral evidence. 

The EAT concluded that there was potential merit in Ms Morgan’s arguments and that the evidence, when heard, might show that Ms Morgan’s complaints met the public interest test. The EAT therefore remitted the claim back to the tribunal to continue to a substantive hearing before a different employment judge.

Comment

The case is a useful reminder of the high threshold that is required before a tribunal can exercise its power to strike out a claim as having no reasonable prospects of success and that this is particularly true for discrimination and whistleblowing claims, where strike out is rarely appropriate without hearing the evidence. It will be interesting to see whether Ms Morgan’s public interest arguments persuade the employment tribunal at the full hearing of this case.

Morgan v Royal Mencap Society UKEAT/0272/15, 22 January 2016 (Bailii).