28 Jun 2018

To form the basis of a whistleblowing claim, a protected disclosure must contain 'information' about one of a limited number of concerns that the worker reasonably believes to be a matter of public interest. The Court of Appeal has recently considered the question of what amounts to 'information' in this context in the case of Kilraine and London Borough of Wandsworth [2018] EWCA Civ 1436.

Background

The Employment Rights Act 1996 contains a regime for the protection of 'whistleblowers' – those who make protected disclosures to prescribed persons in the public interest.

A protected disclosure is a disclosure of information which a worker reasonably believes tends to show that one of the following situations has occurred, is occurring, or is likely to occur:

  • A criminal offence
  • A failure to comply with a legal obligation
  • A miscarriage of justice
  • The endangerment of health and safety
  • Damage to the environment
  • The deliberate concealment of any of the above.

The facts

Karen Kilraine (KK) was employed as a teacher and project manager, involved in projects that aimed to raise educational standards in schools. She raised a number of complaints about work colleagues over a number of years, which culminated in her employer embarking on a disciplinary process for pursuing unfounded allegations. 

Shortly afterwards, a reduction in funding that affected the work KK had been doing generated a redundancy situation, and KK was dismissed by reason of redundancy. She presented claims of unfair dismissal, automatically unfair dismissal, and detrimental treatment for making protected disclosures.

Employment tribunal decision

The employment tribunal (ET) found that it was redundancy, and not the making of protected disclosures, that was the real reason for KK's dismissal. She was found to have been unfairly dismissed but no compensation was awarded on the basis that she would have been made redundant in any event.

In deciding whether KK had suffered a detriment as a result of making protected disclosures the ET struck out three of the four alleged disclosures, two of which (numbered 3 and 4) became the subject of appeals by KK to the Employment Appeal Tribunal (EAT) and the Court of Appeal.

Disclosure 3 involved a complaint by KK that she had not been included in a particular meeting to present an annual report. She complained of numerous incidents of inappropriate behaviour toward her. The ET found that KK's complaint amounted to the making of an allegation, not the disclosure of information.

Disclosure 4 involved a complaint about the response KK claimed to have received after reporting a safeguarding issue. The ET found that again this was an allegation that did not include the provision of information and also that it did not evidence any failure to comply with a legal duty, as KK had claimed.

Employment Appeal Tribunal decision

The EAT dismissed KK's appeal but disapproved of the ET's analysis of a disclosure as amounting to either an "allegation" or "information". The test is whether there is a disclosure of information. It is possible for a disclosure of information to also amount to an allegation.

The EAT however agreed that disclosure 3 did not disclose information and was simply far too vague.

Disclosure 4 was, in the view of the EAT, an allegation that also provided information about what was said or not said at the meeting. However, the appeal was dismissed on the basis that the alleged breach of a legal obligation had not been raised before the ET, there was no indication of any breach of a legal obligation, and KK had not established that she reasonably believed that there was a relevant legal duty.

Court of Appeal decision

The Court of Appeal agreed with the EAT's decision in relation to both disclosure 3 and disclosure 4, noting that the ET's error in the approach it had adopted in distinguishing between 'information' and an 'allegation' was immaterial.

Comment

This case underlines the importance of assessing whether an alleged protected disclosure involves a disclosure of 'information', bearing in mind that:

  •  A communication in the form of an 'allegation' can include the disclosure of 'information' – the two are not mutually exclusive.
  • The information needs to have sufficient factual context for it to be capable of tending to show that one of the limited number of identified situations has occurred, is occurring, or is likely to occur. In this case KK's assertion that there had been incidents of inappropriate behaviour towards her had no factual context and was simply too vague. Had KK explained the basis on which the behaviour towards her was considered to be inappropriate, the conclusion might have been different
  • It is important to note that factual context can be drawn from different sources from the one in which the disclosure is made. This may involve taking together a series of communications that individually do not contain sufficient information but collectively are sufficient to meet the legal test 
  • Factual context may also be drawn from the circumstances in which a statement is made. The Court of Appeal adapted an example from the earlier case of Cavendish Munro Professional Risks Management v Geduld [2010] IRLR 38 to illustrate the point. In a hypothetical situation involving the state of a hospital, it was noted in the Cavendish case that:

"Communicating 'information' would be "The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around". Contrasted with that would be a statement that "you are not complying with health and safety requirements". In our view this would be an allegation not information."

The Court of Appeal in the Kilraine case noted that if the statement "you are not complying with health and safety requirements" was made by someone standing in a ward pointing at sharps left lying around, the statement would amount to a protected disclosure. Although it takes the form of an allegation, it derives sufficient factual context from the circumstances in which it is made.

As a final point, it is also worth considering whether to seek a ruling from an ET on whether an alleged protected disclosure satisfies the legal test before, as in the Kilraine case, the case reaches the stage of an eight day hearing in respect of which the claimant has produced a 377 page witness statement and 4,000 documents!