employment law in california

Who at our Autumn Conference in 2006 may be interested to learn of some recent developments in the area of whistleblowing - that is, claims of suffering a detriment or dismissal on the basis of a protected disclosure under the Public Interest Disclosure Act 1998 (PIDA).

The extent of the PIDA

The case of Croke v Hydro Aluminum Worcester Ltd concerned a person who supplied his services to an agency to work through his own service company. The Agency for Labor, which in turn, the services of the company to an end user client. Despite these very commercial agreement, the Employment Appeal Tribunal (EAT) decided that individual an "employee" within the meaning of section 43K of the Employment Rights Act 1996 (ERA) (taking into account the provisions of PIDA). The individual was therefore entitled to a claim that he had suffered a detriment (in this case, the termination of the contract) on the grounds that it is a protected disclosure.

Reasonable Faith

To be protected by the PIDA, a worker need only a reasonable belief that the information which tends to one of the "errors" under s.43B ERA (for example, that an offense was committed, that against the employer a legal obligation, or that there is a danger to the health and safety or the environment). If the employee ultimately shown that it is wrong, this is not necessarily fatal to his whistleblowing claim, provided that the mistake was reasonable.

In 2004, the case of Kraus V Penna plc & Anor a controversial restriction on the concept of reasonable belief. The EAT in this case ruled that, although a whistleblower claim will not be defeated if it is sensible wrong about the factual basis of the alleged misconduct, the claim will not work if, as a matter of law, the employer is not under a legal obligation in the first place, or the alleged act (s) could not be a crime.

This is a subtle but important distinction that has been recently by the Court of Appeal in the case of Babula v Waltham Forest College. Mr Babula was a lecturer for a course, which discovered that his predecessor, Mr Jalil, not taught, the curriculum, but the class is divided into an Islamic group (to whom he Religious Studies) and a non-Islamic group (the he ignored). He had also said the Islamic group that he wished that a terrorist incident, similar to the 11th September, would be in London. Mr Babula reported these allegations to the head of the school, but later came and claimed that it is among a number of detrimental acts as a result of the increase in his concerns.

In pursuing a claim for automatic unfair dismissal under PIDA, Mr Babula sought to determine whether he made a protected disclosure of the following reasons: --

The fact that he can reasonably assume that a crime, incitement to racial hatred has been committed, and

That the College had failed to a legal obligation not to implement the policy of equal opportunities to those who have non-discrimination on grounds of religion.

The application of rigorous tests in Kraus, the Tribunal and the EAT concluded that Mr Babula not on these two reasons. First, the alleged actions of Mr. Jalil was for reasons of religion, not race, and at the time there was no such crime, incitement to religious hatred. Secondly, the defendants EO made no reference to religious discrimination and thus was not a legal obligation. According to Kraus, the reasonable Mr Babula beliefs were irrelevant if no criminal or legal obligation actually existed.

However, the Court of Appeal thought otherwise. Kraus overturning the decision, the Court held that such a restrictive interpretation would be consistent with the purpose of the legislation on whistleblowing, for the promotion of employees to come on the basis of their reasonable beliefs - not their legal expertise. Mr Babula therefore won his appeal.

Breaking the Chain of Causation

To be successful in one after the PIDA, a worker must prove, ie that the causality-related charges or dismissal was a direct consequence of that disclosure. The case of Bolton School v Evans, an IT teacher, was concerned about the safety of the school of the new IT system. His initial concerns were not addressed and thus to demonstrate the system to potential weaknesses, he hacked into a student from the computer, people with disabilities, some of the accounts and then said the Head Teacher, what he had done. For his efforts he received a written warning on the grounds of misconduct for breaking into the system without authority. In response to this and he claimed that he is under the influence of disadvantage and constructively dismissed for a disclosure.

The Employment Tribunal accepted that there is a qualifying disclosure under PIDA, since it is likely that the teachers that his employer, in violation of his statutory obligation under the Data Protection Act 1998. The court has also decided that the teacher's behavior into the system was so interrelated to its original revelation that it is "integral part of IT." According to how the teacher was clearly due to an impairment of such conduct, his request was granted.

However, both the EAT and now the appeals court rejected this analysis. The EAT has an important distinction between the disclosure of information itself (protected), and behavior to show that a particular belief was reasonable (which is not). Simply, E was disciplined for his actions in the anti-hacking into the system, not for informing the school that its system was insecure. An employee is not permitted to commit what would otherwise be an act of misconduct, to the spread.

Comment

While the EAT's argument is that it shows a weakness in the legislation on whistleblowing. When an employee actions in the investigation of suspected abuse are not protected, it might be difficult to make a sufficient "reasonable belief" to ensure that any subsequent disclosure is protected. This is potential informants come forward and the purpose of the Act. Commentators have pointed out that a solution may be to the statutory audit, to name only a "genuine belief" (subjective test) or a "reasonable suspicion".

While employers welcomed this decision, it is not a "get out of jail free card". Courts will be cautious the employer alleges that an employee was dismissed because of an act in connection with a disclosure is not disclosure, and the employer with this argument, with a thorough examination of their underlying motives.

AND IN OTHER NEWS

Religion (or lack thereof) has strongly Featured in a series of recent employment law cases.

In the highly publicized case of Azmi v Kirklees Metropolitan Borough Council, Mrs Azmi has lost her complaint in relation to their right to wear a veil, while carrying out their duties as a bilingual teacher support. The EAT found that an instruction to remove the veil was not a direct or indirect discrimination on grounds of religion or belief. Although the statement meets the criteria for indirect discrimination, the EAT ruled that the employer was entitled to the defense of "objective justification" - the instruction that an appropriate means of achieving a legitimate aim (ie, the provision of best quality of education).

In Glasgow City Council V McNab an atheist teacher working in a local authority maintained Roman Catholic school after a promotion to the position of "the principle teacher of pastoral care." But he was refused an interview on the grounds that the Roman Catholic faith was a prerequisite for the job in question. The Council accepts that it discriminated against Mr McNab, but tried to focus on the "genuine occupational requirement" in defense of religion or belief regulations. In rejecting the argument of the Council, the EAT decided that the responsibilities of teachers in the pastoral counseling on a variety of issues, not just the teaching of the Roman Catholic Church (which could make it to another teacher). It followed that it was not a real requirement for the post-holder will be selected by the Roman Catholic faith and of the Council unlawfully discriminated against Mr McNab.

Finally, in the New Testament Church of God v Stewart, the EAT has confirmed that a minister of religion may be a claim for unfair dismissal, as set out in the framework of an employment contract. In rejecting the traditional view that a cleric is only a "Servant of God", the EAT held that: "If the relationship between church and minister has many of the characteristics of an employment contract with regard to the rights and obligations, they can not simply ignored, because the duties of a religious or pastoral nature. "