Whistleblowing ... Does an employee's mistake deprive him of protection?

Workers are given statutory protection if they suffer a detriment as a result of making a complaint about a certain type of wrongdoing ("whistleblowing"). In order to be protected the worker has to act in good faith and have a reasonable belief that they are disclosing a wrongdoing (i.e. making a protected disclosure) of a type of wrongdoing referred to in the legislation, e.g. a breach of a legal obligation or an activity likely to lead to a criminal offence being committed.

The Court of Appeal has confirmed that an employee's reasonable belief that information disclosed by him tended to show a "criminal offence" had been committed, qualified him for protection under the whistleblowing legislation even though that belief was wrong.

In Babula v Waltham Forest College [2007] Mr Babula, an American working as a lecturer at Waltham Forest College, alerted the CIA, the FBI and the police about concerns that a fellow lecturer had been segregating his non Muslim students and expressing his support for the 9/11 terrorist attacks. Mr Babula was concerned that the lecturer's comments amounted to incitement to religious hatred. After having reported his concerns Mr Babula felt that he had no option but to resign.

The Employment Tribunal and subsequently the EAT held that Mr Babula could not rely on the whistleblowing protection afforded by the Public Interest Disclosure Act 1998 on the grounds that no such offence of incitement to religious hatred existed at the time when he blew the whistle.

However, the Court of Appeal reversed this ruling. The Court held that it was not reasonable to expect workers to have a detailed knowledge of criminal law so as to enable them to decide whether particular facts constitute a criminal offence and such an approach would undermine the underlying policy of the legislation. The Court of Appeal's decision therefore confirms that nothing within the whistleblowing legislation requires the whistleblower to be right about the law and provided that his or her belief is held by the Tribunal to be objectively reasonable this is unlikely to deprive the whistleblower of the protection afforded by the whistleblowing legislation.