Sacked lecturer wins new tribunal

December 20, 2002

A lecturer sacked by Surrey University after complaining about management practices at the business school where he worked has been given a second chance to claim victimisation under the law to protect whistleblowers.

In a landmark judgment under the Public Interest Disclosure Act, the Employment Appeal Tribunal (EAT) this week threw out the 2001 judgment by a South London tribunal, which found that Geoffrey Darnton had not been victimised because his disclosures were not eligible for legal protection.

The Appeal Court said that the tribunal had asked the wrong legal questions and made an almost "throwaway" judgment on a key issue. The case will now be heard by a different tribunal.

The THES first reported in July 2000 that when Mr Darnton wrote to Surrey vice-chancellor Patrick Dowling to complain about management practices and low morale at the Surrey European Management School (SEMS) in 1999, his work at the university came to an abrupt end.

Eight days after Mr Darnton wrote his missive, he received an email from SEMS's then deputy head, Peter Kangis, that said: "Following your recent letterI we consider that the basis of trust between us has broken down. In these circumstances your services will not be required."

Mr Darnton's letter alleged that SEMS director Paul Gamble had "harassed and bullied" him and others at the school, had refused to clarify procedures relating to travel expenses, and had escaped all scrutiny from Surrey because his self-contained postgraduate school was highly lucrative.

The original tribunal said that while Mr Darnton suffered detriment as a result of his letter, it was not the kind of disclosure that attracted legal protection under the so-called whistleblowers act.

Protection against detriment is given to disclosures of crime, of failures to meet legal obligations, of health and safety or environmental abuses, or of miscarriages of justice, where the whistleblower has a "reasonable belief" that wrong-doing is taking place or will take place, and when disclosures are made in "good faith".

Mr Darnton argued that he had a reasonable belief that his disclosures tended to show various breaches of legal obligations. But the tribunal said his complaints were not factually correct and were not made in good faith, so did not count as a disclosure that qualified for legal protection.

The appeal judge, Daniel Serota, QC, said: "The tribunal in this case had departed from the statutory test; it did not ask whether Mr Darnton held the reasonable belief that what he was disclosing tended to show a relevant failure, but instead asked itself whether the factual allegations were correctI Reasonable belief must be based on facts as understood by the worker, not as actually found to be the case."

The tribunal's decision was "based on the application of an incorrect test as to what is a qualifying disclosure". On the issue of "good faith", Mr Serota said: "The tribunal's decision in this regard is brief and almost throwaway. The ET (employment tribunal) has not set out clearly why it rejected Mr Darnton's good faith and has given no satisfactory reasons for its determination."

He concluded: "The case must be remitted to a differently constituted tribunal for determination in accordance with this judgment."

Surrey's spokeswoman said that the EAT did not criticise the original tribunal's findings but had remitted the case because the correct test for interpreting it had not been applied.

The Whistleblower column returns in the new year

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