Whistleblowing - protected disclosures - allegation or information?
We look at the Court of Appeal's guidance on the potential overlap between whether a protected disclosure is an allegation or information
Sections 43A-43L of the Employment Rights Act 1996 protect workers who report malpractice (a 'disclosure') by their employer and are then treated badly. For a disclosure to be protected it must contain 'information' which the employee reasonably believes is in the public interest. It must also show one or more of six specified types of malpractice (such as a criminal offence or breach of a legal obligation) has taken place, is taking place or is likely to take place. But what amounts to “information”? Is an allegation sufficient?
Mrs Kilraine was a manager employed by the London Borough of Wandsworth. She was suspended on full pay for raising unfounded allegations against a number of colleagues on various occasions. While she was suspended, her employment was terminated for redundancy. She brought unfair dismissal and detriment claims, based in part on making protected disclosures.
Her unfair dismissal claim was rejected by the tribunal as her dismissal was found to have been a genuine redundancy unrelated to her alleged disclosures. In relation to her detriment claim, the tribunal found that they were not “qualifying” as they did not provide information that tended to show a relevant failure.
The Court of Appeal held that the tribunal should not be tempted into determining whether a disclosure is one of “information” or an “allegation” as the terms are not mutually exclusive and, practically speaking, often interlinked. The question is whether a disclosure has a “sufficient factual content and specificity” such as is capable of tending to show one of the six relevant failures.
The Court of Appeal gave helpful guidance on the potential overlap between an allegation and information:
- 'You're breaching health and safety obligations' - these words are too general to be information. They contain no facts and so cannot be said to amount to a disclosure tending to show a relevant failure;
- 'There are needles all over this ward floor, you're in breach of health and safety obligations' – this is an allegation, but it also contains information (about the needles).
Context is relevant too. If an employee says 'you're breaching health and safety obligations' whilst gesturing to the needles, that combined communication could also be 'information'.
One of Mrs Kilraine's disclosures was just an allegation with no information. It had been correctly struck out. This case may help employers to differentiate between simple allegation and those comments which might qualify as protected disclosures if other parts of the legal test are met.