The EAT (HHJ McMullen QC presiding) has held that it is normally inappropriate to make a submission of 'no case to answer' at the end of the Claimant's case in whistleblowing cases.
Whistleblowing is a form of discrimination. As with all discrimination claims, it is possible that much of the relevant evidence will come from the Respondent's side. By cutting off a case at half-time, a tribunal denies the Claimant an opportunity to cross-examine the Respondent and seek to elicit favourable evidence - notwithstanding that the burden of proof is on the Claimant to establish a protected disclosure.
Accordingly the EAT set aside the tribunal's decision to dismiss a whistleblowing claim on a submission of no case to answer, and remitted the case to the same tribunal to hear the rest of the evidence.
Boulding v Land Securities