EAT confirms whistleblowers cannot cherry pick which parts of a report to a regulator count as a protected disclosure

Background

In Mr P J Jackson v The Chief Constable of Greater Manchester Police, the claimant was a former senior police officer for Greater Manchester Police. He sent three reports to the independent police regulator alleging a culture of cronyism, favouritism and cover-ups. He alleged that specific passages within those reports amounted to 19 protected disclosures, that he suffered detriment as a result, and that he was constructively dismissed when he gave notice of his retirement.

The employment tribunal found that none of the 19 alleged disclosures were a protected disclosure, and that the claimant had not been constructively dismissed. The claimant appealed in relation to six of the disclosures and the constructive dismissal finding.

EAT decision

The Employment Appeal Tribunal (EAT) dismissed the appeal on all grounds. The claimant argued that the tribunal should have confined its analysis to the specific passages he chose to plead, treating the surrounding material only as background context.

The EAT rejected that approach. Disclosures made outside the employment relationship, to a prescribed person such as a regulator require a higher threshold to be met. Under the relevant provision, the claimant was required to reasonably believe both that the information disclosed in relation to each alleged protected disclosure, and that every allegation in it, was substantially true. It was not sufficient for the claimant to reasonably believe the general gist of what was disclosed.

Applying that principle, the tribunal had been correct to examine what was actually disclosed by reading the reports in context and in the round, rather than being restricted to the specific passages the claimant chose to plead. The EAT agreed that allowing a worker to exclude, or "fillet", parts of their own disclosure would let them avoid the consequences of lacking the requisite belief in those parts, undermining the purpose of the higher threshold that applies to external disclosures. At the same time, the tribunal was not required to find that the claimant believed the whole of the three reports to be true, only the parts connected to the specific disclosures relied upon, assessed qualitatively rather than by reference to any fixed percentage. On that basis, the tribunal had permissibly found that the claimant lacked the necessary belief in respect of the disclosures under appeal.

Because no protected disclosure was established, the challenge to the tribunal's rejection of constructive dismissal was academic, but the EAT addressed it in any event and found no error in the tribunal's conclusions that there was no qualifying last straw, that the claimant had affirmed his contract, and that he had intended to retire regardless of any alleged breach.

Learning points

The decision confirms the importance of context when assessing whether a disclosure qualifies as protected. Tribunals are entitled to review the entirety of a disclosure, rather than focusing solely on specific passages selected by the whistleblower. Employers defending such claims can, and generally should, point tribunals to the full context of any document said to contain a protected disclosure, rather than treating the claimant's selected extracts in isolation.

Employers should also note the higher threshold for disclosures made to external regulators, which requires the worker to reasonably believe not just the general gist of the disclosure but the substantial truth of every allegation within it. Importantly, workers cannot selectively exclude parts of their disclosure to avoid scrutiny, reinforcing the principle that such disclosures must be assessed in their entirety. For employers, this highlights the need to conduct thorough investigations into whistleblowing claims, ensuring that the full context is considered. Additionally, where no protected disclosure is established, claims of detriment or constructive dismissal are likely to fail, underscoring the importance of robust documentation and careful assessment of the circumstances surrounding any resignation.

For more information or advice, please get in touch with Sharmin Chowdhury in our Employment team.