Mon 04 Feb 2019

Defamation complaint was not a protected disclosure

The EAT has found a complaint about defamation could be a protected disclosure but it did not meet the public interest test.  

Establishing whether a protected disclosure has been made for whistleblowing purposes is, unfortunately, often far from straightforward.  In order to be protected under the whistleblowing legislation (which is set out in the Employment Rights Act 1996 ("ERA")) a worker must have made a "qualifying disclosure".  A qualifying disclosure is one that discloses information which, in the reasonable belief of the worker, is made in the public interest and which tends to show one or more of a list of six relevant failures including a failure to comply with any legal obligation to which a person is subject.  The information must also be disclosed in a way that satisfies the legislative provisions to be a "protected disclosure" - that includes disclosure to the employer. 

In Ibrahim v HCA International Ltd the EAT has overturned a tribunal judgement that a complaint about defamation was not a complaint about others failing to comply with a legal obligation.  Mr Ibrahim was an interpreter at a private hospital who complained to his employer that he was being defamed by rumours that he had breached patient confidentiality.  In an email to his employer Mr Ibrahim said he had to "clear his name".  The complaint was investigated and subsequently rejected.  When Mr Ibrahim was dismissed he brought a claim which included detriment for having made a protected disclosure.   

At a preliminary hearing to establish whether Mr Ibrahim had made a protected disclosure the employment tribunal held that "complaining that false rumours have been made does not amount to a disclosure of information tending to show that someone has breached a legal obligation".  The tribunal also found that the disclosures were not made in the public interest but rather were made with a view to the claimant clearing his name. 

On appeal the EAT overturned the tribunal's judgement that the complaint of defamation did not amount to an allegation of a breach of a legal obligation.   

However, the EAT accepted the tribunal's analysis that the disclosure did not meet the public interest test.  It was open to the tribunal to conclude that Mr Ibrahim did not believe the disclosure was being made in the public interest at the time he made it.  As such, the disclosure did not meet the public interest test and therefore was not a protected disclosure for the purposes of a whistleblowing claim. 

Breach of any legal obligation is the most common category of a relevant failure relied upon by workers making protected disclosure claims. This case is an example, not only of how widely "legal obligation" will be interpreted, but also the extent to which the 2013 introduction of the public interest requirement can limit the types of claim that can be brought.  

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