Dobbie v Felton [2021] EAT (UKEAT/0130/20)

In brief

Dobbie, a solicitor who raised concerns about client-relationship charges, won a whistleblowing appeal at the EAT on the s.43G 'reasonable in all the circumstances' test: "Accordingly, the appeal is allowed on both grounds" [60]. The EAT confirmed that where a worker makes a disclosure to a third party other than the employer or a prescribed person (s.43G route), the "reasonable in all the circumstances" test requires a holistic weighing of the factors in s.43G(3): the identity of the person to whom the disclosure is made, the seriousness of the relevant failure, whether the relevant failure is continuing or likely to recur, whether the disclosure is made in breach of a duty of confidentiality, and any previous action taken by the worker or the employer. No single factor is determinative.

Key provisions

• reasonableness analysis — Holistic weighing of s.43G(3) factors — no single factor determinative : Where a worker makes a disclosure via the s.43G third-party route, the "reasonable in all the circumstances" test requires the tribunal to weigh all relevant factors listed in s.43G(3) together. The list is non-exhaustive; the analysis is holistic.

When relevant

Cases involving the third-party disclosure route under s.43G ERA 1996. Use where a worker has disclosed to someone other than the employer or a prescribed person and the reasonableness of that choice is challenged.