Mon 18 Oct 2021

Guidance on whistleblowing disclosures

A structured approach should be taken to assessing "qualifying disclosures"

Whistleblowing is one of the more complicated areas of employment law.  Identifying whether or not a disclosure of information amounts to a "qualifying disclosure" that a claimant can rely on for legal protection can cause difficulties even for employment tribunals. As such, it is not surprising that employers may not always recognise that what they are dealing with could give rise to an employment tribunal claim.  Martin v London Borough of Southwark provides a timely reminder of the approach a tribunal should take when assessing if a qualifying disclosure has been made.

Disclosures that may qualify for legal protection must show or tend to show one of the wrongdoings set out in section 43B of the Employment Rights Act 1996.  In this case it was alleged that the employer had failed to comply with a legal obligation under s43B(1)(b).

The claimant was a teacher who was concerned he and his colleagues were working in excess of "statutory directed time".  He raised this via email with his employers on multiple occasions, the emails taking the form of queries seeking explanations or consideration.  He subsequently alleged that these emails were protected disclosures and as a result of raising the issue he had been subject to a detriment.  The employment tribunal approached matters by considering, on an objective basis,  whether the information provided by the claimant - as it was in the form of queries - tended to show a breach of a legal obligation.  It concluded that it did not, as it only queried data and did not allege a breach.

On appeal, the Employment Appeal Tribunal (EAT) found the employment tribunal had not correctly applied the statutory test.  The employment tribunal should have considered:-

  1. whether there was a disclosure of information;
  2. whether the claimant believed the disclosure was made in the public interest;
  3. whether that belief was reasonable;
  4. whether the claimant believed the disclosure tended to show a breach of a legal obligation; and
  5.  whether that belief was reasonable. 

The appeal was successful and the case was sent back to be dealt with by a differently constituted tribunal.  The EAT also confirmed that, as is set out in the legislation, a disclosure of information can still be made even when the person whom the disclosure is made to is already aware of it.

This type of situation can arise in circumstances where the employee raising the issue on behalf of himself and his colleagues may seem like a troublemaker - particularly if the employer is of the view that the employee's assertions are wrong.  However, being wrong does not mean the disclosure does not give rise to legal protection, as long as the employee reasonably believes it to be correct and in the public interest.

In what is a complex area of law, the five step process referred to by the EAT is relatively straight forward and employers would be wise to consider it prior to taking any action against an employee in what may be a whistleblowing situation.  It is important to bear in mind that, unlike normal unfair dismissal claims, employees do not need any qualifying service in order to bring a whistleblowing claim.  There is also no cap on compensation in whistleblowing claims meaning errors in handling these types of issues can be costly.

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