Protected disclosures must be factual and specific
The whistleblowing legislation, which protects employees from unfair dismissal and victimisation by their employers for making protected disclosures, is regularly the subject of litigation, as top London employment lawyers will know. In a recent case of interest to UK employment lawyers, Kilraine v London Borough of Wandsworth, the Court of Appeal looked at the distinction between information and allegations made by an employee relying on protection of the whistleblowing legislation, but just as importantly made it clear that a protected disclosure must be sufficiently factual and specific before an employee can rely on it as such. Employment claim solicitors will understand that the employee must also reasonably believe that the information provided does indeed demonstrate the employer’s behaviour to amount to one of the ‘relevant failures’ specified in the whistleblowing legislation.
The facts in Kilraine v London Borough of Wandsworth
The facts of the case were not particularly unusual, and many of the best London employment solicitors will no doubt recognise similarities with other cases. Ms Kilraine had made a number of complaints about her colleagues during the course of her Employment. In particular, in the period 2005-2010 she made 4 alleged protected disclosures. Shortly after making the 4th allegation, she was put on garden leave and subsequently formally suspended while a disciplinary investigation was carried out into whether she had made unfounded allegations against her colleagues on a number of occasions. She was eventually dismissed by reason of redundancy a year later.
By the time the matter reached the Court of Appeal, only 2 of the alleged protected disclosures were in issue. It was also undisputed that she had genuinely been dismissed for redundancy and not for making protected disclosures.
The first of the alleged protected disclosures dealt with by the Court of Appeal (and the EAT before) was the third of the 4 disclosures originally relied on by the claimant. It was contained in a letter and could be identified as a sentence as follows “Since the end of last term, there have been numerous incidents of inappropriate behaviour towards me, including repeated sidelining, and all of which I have documented.”
The second allegation was in an email and was the fourth of the original allegations made by the claimant. It read “She did not support me, as she claims, when I reported a safeguarding issue during [a meeting on 16 June 2010]. Her response, which shocked me was 'I can't comment, I am never there during the school day, only before … or after … so I can't comment'. This was, repeated, belittling and I tried very hard to engage her as my line manager in the report.”
The decisions of the ET and Employment Appeal Tribunal
The Employment Tribunal had dismissed both these alleged protected disclosures as ‘allegations’ and not information. In the case of Cavendish Munro Professional Risks Management Ltd v Geduld, the Employment Appeal Tribunal had suggested that there was a distinction between ‘information’ and ‘allegations’, and that for there to be a protected disclosure, a claimant needed to have provided information, not merely made allegations. In connection with the second of the 2 alleged protected disclosures, in addition to the lack of information, the ET also held that the claimant had not “articulated any genuine legal duty to support her, or shown that she reasonably believed that there was such a duty”.
The Employment Appeal Tribunal dismissed the claimant’s appeal although the judge cautioned against a rigid application of the distinction between information and allegations advocated by the EAT in the Cavendish Munro case. However, in the case of the first allegation, the EAT simply felt that there was no specific information – the letter was far too vague.
In respect of the second allegation, contained in the email, the EAT again disagreed with the information/allegation distinction, but upheld the decision of the ET on 2 other reasons – firstly that the claimant changed her argument and sought to rely on a different breach that had not previously been referred to and was not included in a list of issues; there was not enough information to show a breach of legal obligations. Equally, the claimant had not showed that she reasonably believed that there was a relevant legal duty.
The Court of Appeal decision
The Court of Appeal considered the guidance in Cavendish Munro first and looked at whether there was a rigid distinction between ‘information’ and ‘allegation’ that meant that an allegation could not contain information and vice versa. The Court of Appeal thought that there was no such rigid distinction; allegations could contain information – but an allegation without sufficiently detailed information could not amount to a protected disclosure.
Moving on from this issue, the Court of Appeal looked at the alleged protected disclosures in issue. In relation to the first disclosure, the Court of Appeal noted the importance of the context in which a statement or allegation is made. Context can often inform and elaborate on the words that are spoken. In this case neither the claimant nor her lawyer had sought to elaborate on the context of the letter and the allegations of repeated side-lining.
Looking at the second disclosure, contained in the email, as far as a relevant legal obligation was concerned, the Employment Tribunal had had no evidence before it of any relevant legal obligation, and was therefore entitled to conclude as it had done. She could not show that “…she believed at the time of the disclosure that the information in it tended to show that someone had failed, was failing or was likely to fail to comply with a legal obligation…”
Lessons for those relying on whistleblowing provisions
The Court of Appeal’s decision contains some useful pointers for anyone considering a claim under the whistleblowing legislation. Key to a claim will be identifying specific failures, with enough factual context to put the employer on notice. It does not matter whether this is presented as information or allegation, provided the relevant details are there.
For any legal advice and support relating to whistleblowing and protected disclosures, OTS Solicitors can help. We can assist employers and employees alike in all aspects of Employment and HR law combining high quality advice with practical support. To discuss any employment law matter in confidence with one of our London based employment law team, please call us on 0203 959 9123 today!