March 19 2007 Employment Law Enews

Welcome to the latest edition of steeles employment law enewsletter.

Whistleblowers gain greater protection

To qualify for protection under whistleblowing legislation, an individual must have made a "qualifying disclosure" which in their "reasonable belief" satisfies certain statutory criteria. The Court of Appeal has recently handed down a judgment clarifying what "reasonable belief" means, arguably giving greater protection to those seeking to blow the whistle.

In Babula v Waltham Forest College, the claimant was employed as a lecturer to teach a business course. He was informed by students that their previous lecturer had taught religious studies rather than the course curriculum and had indicated his support for the terrorist attacks of 11 September 2001. He allegedly expressed a wish that a similar event would occur in London. One student told Mr Babula that she had reported her concerns but had received no effective response from the College. Mr Babula himself raised the matter with a supervisor, who also took the view that no action was required.

Mr Babula then reported the matter to the Metropolitan Police, CIA and FBI and told the College what he had done. He subsequently resigned and brought a claim for constructive unfair dismissal on the basis he had made a qualifying disclosure. He relied on his belief that a criminal offence, incitement to racial hatred, had been committed and that the health and safety of individuals was likely to be endangered.

The tribunal held that Mr Babula had not made a qualifying disclosure. The facts suggested that the former lecturer may have been inciting religious hatred (rather than racial hatred) and at the time of the events, no such criminal offence existed. The tribunal was bound by an earlier decision of the Employment Appeals Tribunal (EAT) in which it was held that for a worker to establish the necessary "reasonable belief" in a protected disclosure, the belief must relate to the truth of the information disclosed. Belief in the existence of a legal obligation or criminal offence which does not actually exist was not enough. The tribunal's decision was upheld on appeal to the EAT.

The Court of Appeal has now upheld Mr Babula's appeal, deciding that it is sufficient for the worker to reasonably believe that such a criminal offence (or legal obligation) exists. It accepted that a belief can be reasonably held even if it was factually wrong.

This decision means that potential whistleblowers will no longer have to be satisfied that any disclosure is based on correct legal assumptions; it will be sufficient that their belief is objectively reasonable. Whilst this may, in practice, encourage more individuals to make a protected disclosure it should not cause undue concern to employers since the disclosure must still be made in good faith.

Agency workers and implied contracts of employment

In our Enews issue of 8 January 2007, we reported the EAT's decision in the case of James v London Borough of Greenwich, in which the EAT declined to find an implied contract of employment had arisen between the agency worker and the end-user. The EAT has since handed down a further decision which supports the findings in the James case and indicates a greater reluctance on the part of the tribunals to find an employment relationship exists.

,i>In Craigie v London Borough of Haringey, the claimant agency worker had been engaged via the agency to work for the council in November 2004. His contract with the agency expressly stated that he was not an employee of the agency. His appointment was terminated a year later and he brought claims for unfair dismissal and breach of contract against the council, both of which were dismissed by the tribunal on the basis he had no contract of employment with the council.

The EAT dismissed his appeal and agreed with the tribunal that it was not necessary to imply a contract of employment in order to give "business efficacy" to the arrangements, since the terms of his contract with the agency were clear. The EAT commented that the law regarding the status of long term agency workers is far from satisfactory and expressed the view that legislation is needed to change it. Similar comments have been made by the EAT in other recent cases, but the prospects for new legislation in the near future seem slight.

The draft European Temporary Workers Directive is currently stalled with no immediate likelihood of it being resurrected due to lack of support from some member states. A private members bill, the Temporary and Agency Workers (Prevention of Less Favourable Treatment) Bill, was introduced in the House of Commons in December 2006. It was due to have its second reading on 2 March, but no vote was taken due to lack of parliamentary time. The second reading has now been rescheduled for 19 October but without Government support the bill is highly unlikely to progress. Meanwhile, the DTI issued a consultation paper in February over proposals to protect agency workers, but these relate to proposed changes to the regulation of employment agencies rather than any material change to the employment protection of such workers. It therefore seems unlikely that the legal position will change significantly for the time being.

National minimum wage rates announced

The Government has announced the new rates for the national minimum wage to take effect from 1 October 2007, in accordance with the recommendations of the Low Pay Commission (LPC).

The new rates are as follows:

- Standard rate (workers aged 22 and over): £5.52 (currently £5.35)

- Development rate (workers aged 18-21): £4.60 (currently £4.45)

- Young workers rate (workers under 18): £3.40 (currently £3.30)

In setting these rates the LPC took into account the increase in statutory holiday entitlement (also due to take effect from 1 October 2007) and the fall in employment in the low-paying sectors, meaning the increase is lower than in previous years.

This article copyright © 2007 Steeles Law llp. All rights reserved.