Mon 06 Aug 2018

Whistleblowing - can an allegation constitute a protected disclosure?

The recent case of Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436 considered the question of whether an allegation can constitute a protected disclosure?

Since 1998, protections have been in place for employees and workers who "blow the whistle".  In the event that an employee or worker is treated to their detriment or is dismissed due to making a protected disclosure, they are able to raise an employment tribunal (ET) claim.  There is no length of service requirement in order to progress a whistleblowing claim  and it is often used as a back door into the ET in circumstances where the employee is unable to bring a "normal" unfair dismissal claim due to not having the requisite 2 years' service. It is therefore important to recognise what might constitute a protected disclosure.

Section 43B of the Employment Rights Act 1996 sets out the requirements for a qualifying disclosure.  It provides that a "qualifying disclosure is any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following:

(a)              That a criminal offence has been committed, is being committed or is likely to be committed;

(b)              That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;

(c)              That a miscarriage of justice has occurred, is occurring or is likely to occur;

(d)              That the health or safety of an individual has been, is being or is likely to be endangered;

(e)              That the environment has been, is being or is likely to be damaged; or

(f)               That information tending to show any matter falling with any one of the preceding paragraphs has been or is likely to be deliberately concealed."

The Kilraine case looked at whether an allegation was enough to amount to a disclosure of information as required by the Act.  In this case, the Claimant had been dismissed from her post as an Education Achievement Project Manager due to redundancy.  However, the Claimant argued that she had made protected disclosures during her employment and had suffered detriment.  She also argued  that her dismissal was as a consequence of those alleged protected disclosures, not on account of redundancy.  She relied on four alleged disclosures.  The third was a letter to a member of staff at the Council stating that it was failing in its legal obligations towards her in respect of the bullying and harassment and that there had been "numerous instances of inappropriate behaviour towards me".  The fourth complaint was said to be contained within an email to the HR Department in which the Claimant had complained abut lack of support from her line manager when she had raised a safeguarding issue. 

The Claimant's claim was dismissed by the employment tribunal.  It determined that the third and fourth disclosures had not contained sufficient information and therefore they were not protected disclosures.  They were simply allegations.  The case progressed to the Employment Appeal Tribunal (EAT). Whilst the EAT upheld the tribunal's decision,  it warned that employers should not fall into the trap of thinking that an alleged disclosure required to be either an allegation or the provision of information.  The reality was that it could be both.  As long as an allegation contained sufficient factual information, it could constitute a protected disclosure and therefore give rise to protections for the employee/worker. 

Kilraine raised a further appeal and the case was considered by the Court of Appeal.  It held that information for the purposes of Section 43B is capable of covering statements which might also be characterised as allegations.  They held that there should not be an artificial separation between allegations and information.  "Allegation" and "information" are not mutually exclusive terms.  In order for an allegation to constitute a qualifying disclosure, it had to have sufficient factual content and specificity to show one of the matters listed above (a) to (f).    It also provided that words that are too general and lack factual content will not amount to "information" for the purposes of Section 43B(i).  The Court did go on to say that words that otherwise fell short could be aided by context or surrounding communications.  The example given by the Court of Appeal was that the words "you have failed to comply with health and safety requirements"  falls short when said on their own, but if the words are accompanied by a gesture of pointing to the sharps left lying on the hospital ward floor this  would amount to information and consequently a protected disclosure.

Whistleblowing cases tend to be very fact specific and much will turn on the circumstances of the particular case in order to determine, firstly, whether a qualifying disclosure has been made and, secondly, whether the employee or worker has been subjected to a detriment or dismissed as a result of making the disclosure.

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