The employer believed Goode had deliberately leaked an internal company email about a review of redundancy terms to the national newspaper and made derogatory and speculative comments about it to cause embarrassment.
The Employment Rights Act (1996) incorporates the Public Interest Disclosure Act of 1998 and provides protection for an employee who reports in good faith suspected malpractice to their employer or in certain circumstances to an industry regulator. Malpractice in these circumstances must relate to criminal activity, a breach of a legal obligation, a miscarriage of justice, health and safety issues and damage to the environment or deliberate concealment of information relating to one or more of these matters.
An employee may bring a claim before an employment tribunal if they are victimised or dismissed by the employer on the basis that they have made a disclosure of malpractice commonly known as a "protected disclosure". An employment tribunal will have to decide, based upon the evidence, whether the employee has suffered a detriment by reason of the protected disclosure or has been dismissed as a result of that protected disclosure.
Goode brought a claim of unfair dismissal and asserted that he was a ‘whistle-blower'. But it is difficult to see how Goode falls within the whistle-blowing legislation. The information disclosed does not come within any of the categories referred to above, according to the information about the case that has been revealed. Furthermore if the employee had concerns he should have raised the matter internally either with his line manager or senior management rather than disclosing such information to the press. In addition Goode could also have consulted his trade union, which could also have raised the matter with management.
News reports do not make it clear whether or not Goode himself was at risk of redundancy but again if he was there were other avenues open to him, such as raising an internal grievance about any treatment he considered unfair.
The employment tribunal concluded that this was not a case involving the reporting of malpractice.
The claimant's representatives have also argued that Goode's human rights were breached but as the human rights legislation does not apply to employees engaged in the public sector, this claim was also apparently dismissed.
If the outcome had been different and an employment tribunal had decided the employer had breached a legal obligation towards its employee, and Goode had been treated to his detriment by virtue of his disclosure, a tribunal would have had no power to investigate or take any action. This would be in respect of the underlying allegation of malpractice particularly where disclosure had been made to an outside regulator.
The Government has recently introduced a consultation paper whereby it is proposed that an employment tribunal can pass on any allegations of malpractice to a relevant industry regulator. Draft regulations have been published and responses are invited by 2 October 2009. It is therefore likely that further regulation will follow on this ever contentious subject.
Michael Delaney is a principal at Matthew Arnold & Baldwin
Why the Marks & Spencer employee's whistle-blowing and unfair dismissal claim was rejected
In the recent case involving Marks & Spencer, Tony Goode, a former employee, leaked to a national newspaper an internal email outlining proposals by the employer to reduce redundancy payments to staff by 25%. Goode was subsequently dismissed for gross misconduct after a disciplinary process had been followed.
