Mr K Sonaike, counsel For the v Respondent — 2023

The tribunal heard a preliminary issue on whether the claimant's 19 February 2021 Letter of Concern to the respondent's Chief Executive was capable of being a qualifying disclosure under s.43B ERA 1996. The claimant relied on alleged failures in the disciplinary process used against Dr Brian O'Neill, the use of the term fraud, and the absence of an external panel member and neuropsychology expertise. The respondent denied that the letter contained a qualifying disclosure and argued that the claims had no reasonable prospect of success.

Applying the authorities it identified, including Williams v Michelle Brown, Easwaran v St George's University of London, Cavendish Munro, Kilraine and Twist DX v Armes, the tribunal accepted that some parts of the letter contained factual material, but held that much of the complaint was framed as allegations or opinions about unfairness. It found that the claimant's evidence showed he knew the respondent was not an NHS body and that there was no legal obligation to adopt NHS Advisory Panel recommendations. It also found no evidential basis for a belief that the matters disclosed tended to show a failure to comply with a legal obligation.

The tribunal rejected the alternative bases relied on by the claimant. It did not accept that the circumstances could reasonably be seen as a miscarriage of justice, noting that the matters concerned internal disciplinary proceedings and that Dr O'Neill had his own recourse to the Employment Tribunal. It also found no basis for a reasonable belief that Dr O'Neill's health and safety had been endangered, and noted the absence of any reference to health and safety in the letter itself.

Overall, the tribunal concluded that the letter was a collective show of support for Dr O'Neill rather than a protected disclosure raising genuine whistleblowing concerns. It held that the claimant had not shown a reasonable belief that the letter disclosed wrongdoing within s.43B ERA 1996, and therefore struck out both the detriment claim and the automatic unfair dismissal claim as having no reasonable prospect of success under Rule 37(1)(a).