Thu 04 Jul 2019

Allegations against a colleague were in the public interest

A recent EAT decision suggests a liberal approach is being taken to the assessment of a qualifying disclosure.

Ever since the requirement (added in 2013) for whistleblowing disclosures to be "in the public interest" there has been a growing body of case law looking at exactly what that means.  The requirement was introduced following the decision of the EAT in Parkins v Sodhexo Ltd where it was held that a breach of the whistleblower's own contract was a "qualifying disclosure" despite the fact there was no public interest element involved.  A qualifying disclosure is one that contains information which, in the reasonable belief of the worker making it, tends to show one or more of six specific types of wrongdoing, one of which is breach of a legal obligation, and it is made in the public interest. 

In Elysium Healthcare No 2 Ltd v Ogunlami the question of whether breach of employment terms amounted to a breach of a legal obligation arose again.  The allegations made by the claimant, a healthcare assistant at a hospital providing care to people who have been detained under the Mental Health Act 1983, were that a colleague, Ms Miles, (1) had been taking food from a patient, (2) that she had access to and control of witnesses relevant to an investigation, and (3) that she had abused a service user.  He believed that he was subsequently subjected to detriments in consequence of making the alleged disclosures. 

The employment tribunal found that these three allegations were protected disclosures.  The claimant had a reasonable belief that a breach of a legal obligation had occurred.  Specifically he believed Ms Miles had breached company policy which was or was likely to form part of her terms and conditions.  On appeal to the EAT it was argued that the tribunal had failed to consider properly whether the claimant had shown that he had a belief that his allegations tended to show a breach of a legal obligation or that they were made in the public interest.   

The EAT noted that there was no evidence of the claimant using the words "breach of legal obligation" nor for that matter a "tendency to show" the same.  They concluded that to make that a requirement "was to impose too high a requirement on the worker".   

The employment tribunal had also correctly applied the guidance in Chesterton Global Ltd v Nurmohamed that there are no absolute rules about what it is reasonable to view as being in the public interest. In addition, the point was made that a worker does not require to communicate that they believe the disclosure to be in the public interest.   

Arguably there is a pretty clear public interest in this particular case - that vulnerable people are being adequately cared for.  This case is though a reminder that there is no requirement for workers to use legal language when making a disclosure and, despite the fact that the public interest test was introduced to combat claims being based on breaches of the employment contract, in the right circumstances, such a breach can still amount to a qualifying disclosure. 

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