Employment law bulletin August 2018

Thursday 30th August, 2018

What kind of allegation actually constitutes ‘blowing the whistle’?

In Kilraine v London Borough of Wandsworth the Court of Appeal confirmed that allegations must be specific and factual to amount to protected disclosures.

Background

The Claimant alleged that she had suffered a detriment by reason of making four protected disclosures during the course of her employment. Subsequently the Claimant was suspended pending disciplinary investigation on the basis that she had raised unfounded allegations against a number of colleagues.

The Claimant was later dismissed by reason of redundancy and she then brought a claim in the employment tribunal (the “ET”) alleging she had been unfairly dismissed and subjected to detriment as a result of the alleged protected disclosures.

All alleged protected disclosures were disregarded by the ET. However, the Claimant’s third and fourth disclosures (which related to the failure of two of her colleagues to comply with their obligation to protect her from incidents of inappropriate behaviour and to provide support when she raised a safeguarding issue) raised the question of whether these types of allegations could amount to protected disclosures under the whistleblowing legislation.

The previous case law had drawn a distinction between a mere “allegation” and actual “information”. The ET held that the Claimant had not made protected disclosures within the meaning of the Act because she had not disclosed any actual information.

The Employment Appeal Tribunal (the “EAT”) upheld the decision and the Claimant appealed to the Court of Appeal (the “CoA”).

The Appeal

The claim was dismissed. It was found that the Claimant had not made any qualifying protected disclosures which could give rise to a whistleblowing claim.

The CoA said that the key issue was not whether the protected disclosure was an ‘allegation or information’. The CoA confirmed that the requirement to provide “information” under the Act is capable of covering statements that could also be characterised as allegations. The CoA emphasised that the disclosure had to have sufficient content and be specific.

Conclusion

This case changes the way in which we analyse whether an employee has made a protected disclosure or not. The concept of merely distinguishing between an ‘allegation’ or ‘information’ is now outdated. The CoA has said that the two concepts can be intertwined in some situations and it is necessary to look at all the circumstances of an employee’s communication to determine whether they have made a protected disclosure.

Although the employee in this case lost her claim, it seems likely that the case will broaden what can be treated as a ‘protected disclosure’ for the purposes of a whistleblowing claim. That being said, the underlying circumstances in each case will be extremely important and each case will need to be assessed on its own merits.

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