Goode v Marks & Spencer plc EAT/0442/09

whistleblowing | protected disclosures | unfair dismissal

The Employment Appeal Tribunal (EAT) has held that where a disclosure is merely an expression of opinion that fails to show that a legal obligation has been or is likely to be breached, it cannot amount to a protected or qualifying disclosure for the purposes of the whistleblowing legislation.

The claimant, Mr Goode, was employed by Marks & Spencer as a database manager. In 2008, Mr Goode learnt that the company was proposing, after consultation, to alter its discretionary redundancy package so that the overall entitlement for employees would be reduced. Mr Goode expressed his concerns that the proposals were "disgusting" verbally and by way of an email to his line manager, Mr Raichura. Mr Goode also disclosed details of the proposals in a survey response and letter to the Times newspaper.

Mr Goode was later identified as the source of the letter to the Times and was summarily dismissed by Marks & Spencer, following disciplinary proceedings and an appeal that was rejected. He subsequently brought proceedings for wrongful and unfair dismissal, arguing that his dismissal was automatically unfair under the whistleblowing legislation because the disclosures made to Mr Raichura and the Times were "protected disclosures". He argued that the company was proposing to make an unlawful variation to employees' contractual terms by altering its discretionary redundancy scheme.

The employment tribunal disagreed that Mr Goode's comments to Mr Raichura amounted to a protected disclosure.  It also held that Mr Goode's disclosure to the Times was not a protected or qualifying disclosure because:

1. there was nothing in the disclosure to indicate that Marks & Spencer was in breach of a legal obligation because the redundancy scheme was discretionary; and,
2. even if the redundancy scheme had not been discretionary, there was no information in the disclosure to suggest that Marks & Spencer was likely to breach a legal obligation.

The tribunal further noted that for the letter to the Times to be a "qualifying" disclosure, Mr Goode would have to show that he had previously made a disclosure of substantially the same information to his employer. The tribunal did not accept that Mr Goode's conversation with Mr Raichura was sufficient to satisfy this requirement. Mr Goode appealed the decision to the EAT.

The EAT agreed with the tribunal's conclusion that the disclosure to Mr Raichura was at the most "information" and that the email to Mr Raichura contained nothing that showed that it was likely that Marks & Spencer would breach any legal obligation with regard to the redundancy scheme. The EAT upheld the tribunal's view that an expression of opinion about a proposal cannot amount to a qualifying disclosure. The EAT also agreed with Marks & Spencer's argument that as the disclosure to Mr Raichura did not amount to a qualifying disclosure, it follows that the disclosure to the Times could not amount to a qualifying disclosure because the disclosure to Mr Raichura would have to be of "substantially the same information". The EAT therefore dismissed Mr Goode's appeal.

Case transcript of Goode v Marks & Spencer plc (Microsoft Word format, 91.5K) (on the EAT website)

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