No protection for “whistleblowers” who fail to disclose factual information

26 July 2018

The Court of Appeal has given important guidance as to when a disclosure by a worker will be considered a provision of information which amounts to a “qualifying disclosure”, rather than a mere “allegation” which does not provide any associated whistleblowing protection.

Where a worker has made a qualifying disclosure and they are dismissed or suffer a detriment as a result of having made such a disclosure, such worker may able to bring a claim against their employer. In order to bring a successful claim, the disclosure must, in the reasonable belief of the worker, tend to show one of a particular set of circumstances which are listed in the Employment Rights Act. This could be, for example, that a criminal offence has been committed or that there has been a breach of legal obligation. 

In the case of Kilraine v London Borough of Wandsworth, the court considered the distinction between the provision of information, which is capable of being a qualifying disclosure, and a mere allegation, which is not capable of constituting a protected disclosure.

The basic facts of the case were that the employee was an Education Achievement Project Manager for London Borough of Wandsworth. The employee alleged that she had been dismissed as a result of protected disclosures she had made. The two disclosures which were considered before the Court of Appeal were:

  1. An accusation that the employee had made in a letter to her employer that “there have been numerous incidents of inappropriate behaviour towards me, including repeated sidelining”.
  1. The raising of a safeguarding issue in relation to a particular school.

Disclosure 1

The Court of Appeal held that disclosure 1 could not amount to a qualifying disclosure as it did not contain sufficient factual information. The Court of Appeal discussed the distinction between an “allegation” and “information”. The court made it clear that it was possible that a statement could be both an allegation and information and that there is not necessarily a rigid dichotomy between the two. The key question was whether there was a disclosure of specific factual information, which in the present case there was not, as no details had been provided as to what the “inappropriate behaviour” was. The employee tried to argue that the statement should have been seen in the context of on-going communications between the employee and the employer. However, the Court of Appeal held that if the meaning of the statement is to be derived from the context, this needs to be explained in the claim form and in the evidence of the claimant, which it was not.

Disclosure 2

The Court of Appeal also held that disclosure 2 could not amount to a protected disclosure. Whilst this disclosure did involve the disclosure of matters which had sufficient factual content potentially to qualify as a qualifying disclosure of information, the tribunal had been entitled to hold that this information was not such as tends to show failure to comply with a legal obligation. The list of issues and witness statement of the employee did not identify any relevant legal obligation which she had in mind as being breached when she raised the safeguarding issue.

Implications of this case

This case is a reminder how difficult it can be to bring a whistleblowing claim. The law is arguably weighted in favour of employers given that employees need to be clear as to the information they provided and, if they were alleging a breach of legal obligation, for there to be clear evidence that they had a breach of an actual legal obligation at the forefront of their mind when raising the concern, rather than merely (as in this case) vague concerns of inappropriate behaviour and so on. It also shows the importance of the individual taking legal advice early on. Taking advice so as to ensure any concerns are properly made and explained, so as to satisfy the definition of protected disclosure, is important. Failing to ensure a disclosure meets the required standard for a whistleblowing disclosure can sometimes leave the employee with a poor relationship with their employer, and limited employment law protection.

When pleading their case, the claimant will need to be clear precisely what information was disclosed and if they are referring to a context, clearly set out that context. From the perspective of an employer who is facing numerous claims from an employee which include a whistleblowing claim, it may be advisable to assess whether an employee’s claims of whistleblowing are a spurious attempt to raise the potential value of their claim. If so, it may be worth considering to apply to strike out such a claim early on in order to reduce the strength of the employee’s position.

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