Whistleblowing

The Employment Appeal Tribunal has handed down judgment in Bachnak v Emerging Markets Partnership (no. 2). For those with long memories, this case went to the Court of Appeal a few years ago on the issue of employment status.

Although Mr Bachnak finally established he was an employee, he failed to persuade the tribunal that (amongst other things) he had made his protected disclosures in 'good faith', which is a necessary condition for obtaining whistleblowing dismissal protection.

He appealed, on the basis the employment tribunal had applied a 'neutral' burden of proof, arguing that it was incumbent on the employer to establish bad faith, rather than on him (or, indeed, without a burden of proof at all) to establish good faith. The Employment Appeal Tribunal, commenting that there was no authority on this point, agreed that it is for the employer to establish bad faith (paras. 24-25). Unfortunately, the technical victory did not avail Mr Bachnak, as the EAT considered that the tribunal's findings did not depend on the burden of proof, so any error was immaterial.

Backnak v Emerging Markets

Thanks to Richard Samuel of 3 Hare Court, Counsel for Mr Backnak, for telling me about this decision.