Whistleblower Appeal Dismissed: Health and Safety Claims Lacked Specificity
An employee's claims about health and safety risks were found to be too vague to be considered protected disclosures.
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Whistleblower's Appeal Fails Over Lack of Specificity in Health and Safety Claims
An Employment Appeal Tribunal has dismissed an appeal brought by a former National Sales Manager, Mrs. L Capeling, against her former employer, TFX Group Limited. The appeal centred on whether certain disclosures made by Mrs. Capeling qualified for protection under whistleblowing legislation. The tribunal found that the information provided was too general to constitute a protected disclosure.
Mrs. Capeling was dismissed from her role in September 2022, with the stated reason being poor performance. She alleged that her dismissal was automatically unfair and that she had been subjected to detriment for making protected disclosures. She relied on three alleged disclosures, but the initial Employment Tribunal found that the first two did not qualify for protection, and critically, that the third disclosure, concerning the absence of written contracts with Dispensing Appliance Contractors (DACs) and potential health and safety risks, also failed to meet the legal threshold.
The core of Mrs. Capeling's appeal focused on this third disclosure. She argued that the lack of written contracts put the health and safety of end-users at risk and that this risk was being concealed. However, the Employment Appeal Tribunal agreed with the initial tribunal's findings. It was held that the information provided by Mrs. Capeling, stating simply that DAC contracts were missing and generally asserting a health and safety risk, lacked the necessary factual content and specificity required by Section 43B of the Employment Rights Act 1996.
Furthermore, the tribunal found that even if Mrs. Capeling genuinely believed there was a connection between the contracts and patient safety, that belief was not reasonable given her position and knowledge. Evidence presented by TFX Group Limited indicated that the absence of written DAC contracts had no bearing on health and safety, as supplies would default to standard terms and conditions. The Employment Appeal Tribunal concluded that Mrs. Capeling had not demonstrated a failure to comply with a legal obligation or that health and safety was endangered in a way that met the legal test for a qualifying disclosure. Consequently, the appeal was dismissed.
Read the entire judgment here: Capeling v TFX Group Ltd EAT 57
