The Court of Appeal has recently decided whether allegations may constitute information for the purposes of a whistleblowing claim (formally known as a “protected disclosure”) under Section 43B of the Employment Rights Act 1996 (ERA).
Section 43B(1) ERA provides that a worker who is making such a disclosure needs to demonstrate that it is both in the public interest to make the disclosure and that he or she reasonably believes that:-
(a) A criminal offence has been committed, is being committed or is likely to be committed;
(b) A person has failed, is failing or is likely to fail to comply with any legal obligation that he, she or it is responsible for;
(c) A miscarriage of justice has occurred, is occurring or is likely to occur;
(d) The health and safety of any individual has been or is likely to be endangered;
(e) The environment has been, is being or is likely to be damaged, or
(f) Information showing that any of the matters covered under paragraphs (a) to (e) above has been, is being or is likely to be deliberately concealed.
Section 43F additionally requires that, in making such a disclosure, a worker must reasonably believe that the information and any allegation contained within it are substantially true.
In the case of Kilraine v London Borough of Wandsworth (which concerned the law on protected disclosures prior to the public interest test mentioned above having been implemented), the Court of Appeal considered whether an allegation could, by itself, be information for the purposes of whistleblowing.
In the judgment of Lord Justice Sales, allegations could form part of information for these purposes, but not every allegation would necessarily also be information. As part of his guidance, Lord Justice Sales held that allegations would need to contain “sufficiently specific factual content” linked to at least one of the fields described in paragraphs (a) to (f) above to be capable of becoming protected disclosures for the purposes of Section 43B of ERA.
The Court did not rule out the possibility that such a statement could be made after other steps had already been taken by the worker making the disclosure. Expanding upon examples raised by the much earlier judgment of the Employment Appeal Tribunal in 2010 of Cavendish Munro Professional Risks Management Ltd v Geduld, Lord Justice Sales held that, if a worker in a hospital were to take his or her manager to a specific ward, indicate sharp objects being left lying around and report that “You are not complying with Health and Safety requirements”, then any subsequent allegation could become a protected disclosure given the context of this action having been taken.
By contrast, if a worker simply made an allegation that “You are not complying with Health and Safety requirements” without providing specific supporting facts, then such an allegation may not be sufficient to become a protected disclosure.
In the case before it, the Court of Appeal held that the particular allegations made by the appellant did not meet this requirement and so her appeal was dismissed.
Despite Lord Justice Sales’s example cited above, we would recommend that workers who “blow the whistle” should keep detailed records of their actions. For example, the worker should ideally make contemporaneous notes of events as well as his or her actions in attempting to encourage corrective behaviour and refer to these in any subsequent written complaint.
Lord Justice Sales’s justification and elaboration of the guidance provided by the Employment Appeal Tribunal in the Cavendish Munro case makes practical and legal sense as allegations made without providing supporting factual details are unlikely to be protected by Section 43B ERA.
As with previous cases which have examined similar concepts surrounding whistleblowing, such as the meaning of “reasonable belief” and “in the public interest”, this case further demonstrates that workers and the organisations that they work for should seek legal advice when it comes to either making or debunking an allegation.
This article is not a substitute for legal advice on specific facts and circumstances. It is designed as a free update on the law at the time of publishing. Knight Polson Limited trading as QualitySolicitors Knight Polson accepts no responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.
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