In Kilraine v London Borough of Wandsworth the Court of Appeal was asked to examine the requirement for a disclosure of information to be made as part of the test to qualify for protection as a whistleblower.
The Court emphasised that the disclosure needs to be conveyed with sufficient specificity and factual context to show the wrongdoing that is being alleged. However, it would be incorrect to suggest that a rigid distinction should be drawn between allegations and information as one disclosure might combine both types of statement.
The Claimant had worked for the Respondent as an Education Achievement Project Manager. She was involved in projects which were designed to improve educational standards. Her relations with colleagues and managers were strained and she had made a number of complaints about various parties. On 1 September 2010 she was suspended on full pay pending the investigation of an allegation that she had made unfounded complaints against colleagues. In early 2011, as a result of a loss of educational funding, the Claimant was made redundant.
The Claimant brought complaints of unfair dismissal and detriment based on four alleged protected disclosures. The Employment Tribunal considered whether the Claimant's disclosures qualified for protection as a preliminary issue. It allowed one complaint to proceed but concluded that she had not been dismissed or subjected to a detriment for making a protected disclosure.
This appeal looked at two disclosures that had not been allowed to proceed (the third and fourth disclosures).
The third disclosure
The third disclosure was contained in a letter where the Claimant complained that she had not been included in a meeting to present an annual report. The relevant section of the letter is as follows:
"I think that it is also important to remind you that what has been achieved over the years has been despite bullying and harassment that was tolerated, and at times, not least at present, encouraged over that time by Stephen Pain, Liz Rayment-Pickard [the Claimant's line manager], yourself and others, and also despite successive and repeated failure to honour LA [local authority] and individual agreements to extend my role and to provide career development. 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. As an example, I have brought to your attention the inappropriate behaviour of Liz Rayment-Pickard, and despite your undertaking have received no feedback."
The Tribunal had decided that this disclosure did not qualify for the protection because it made allegations and did not disclose information.
The fourth disclosure
The fourth disclosure was contained in an email dated 21 June 2010 from the Claimant to a member of Human Resources where she complained that she was dissatisfied with a response to a safeguarding issue that she had raised.
"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 Tribunal decided that this disclosure did not qualify because it did not disclose information and because the Claimant had not articulated any legal duty or shown that she believed it had been breached.
The EAT disapproved of the way in which the Tribunal had adopted a rigid distinction between "information" and "allegation" and stated: "it would be a pity if Tribunals were too easily seduced into asking whether it was one or the other when reality and experience suggest that very often information and allegation are intertwined." However, it still dismissed the Claimant's appeal. The third disclosure was too vague. With regard to the fourth disclosure, the EAT found that it contained an allegation and information about what was or was not said at the meeting. However, it dismissed the appeal in respect of the fourth disclosure because it found that the Claimant did not have a reasonable belief that the disclosure tended to show a specific category of wrongdoing.
Court of Appeal decision
The Court of Appeal was asked to consider whether two communications which had been struck out (the third and fourth disclosure respectively) qualified for protection.
The third disclosure
The Court of Appeal found that the EAT had adopted the correct test in relation to the third disclosure by making a judgment about whether there was a disclosure of information (without adopting a rigid distinction between allegations and information). The Claimant argued that this approach had been too narrow. However, as she did not offer any further context for the third disclosure to supplement its meaning, this argument did not succeed.
The fourth disclosure
The Court of Appeal agreed that the fourth disclosure involved disclosure of information. However, it upheld the decision that the information did not tend to show that there was a failure to comply with a legal obligation. The Claimant had not identified the breach of the legal obligation in the list of issues or her witness statement. As her case advanced, submissions were made based on certain legislative obligations imposed on her employer but the surrounding circumstances did not suggest that she had the requisite belief that there had been a breach of such an obligation.
What do we mean by a disclosure of information?
The Court of Appeal examined the way in which a previous case – Cavendish Munro Professional Risks Management v Geduld – had discussed the requirement for a disclosure of information (compared to allegations) and recognised that this has caused confusion. In that case, the EAT had tried to distinguish between general statements which would not qualify for protection and specific factual concerns which would be protected. However, the way in which that message was captured in the headnote to the case suggested that a rigid distinction between allegations and information had been applied which was not set out in the statute.
The Court of Appeal explained that in order for a disclosure to qualify for protection, it has to have a sufficient factual content and specificity so that it tends to show a reasonable belief in specified categories of wrongdoing. The Court of Appeal referred to the decision in Chesterton Global Ltd v Nurmohamed which confirmed that a worker's reasonable belief has an objective and subjective element: "if the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief."
What does the decision mean for employers?
When defending a complaint of whistleblowing detriment or dismissal, an employer should still scrutinise whether all the elements of the statutory test have been met. Where disclosures lack specifics and factual context, they should be challenged. If complaints are wide-ranging and unparticularised, employers should invite the Tribunal to make an order for the former employee to provide a detailed schedule of disclosures and alleged detriments so that each element of the complaint can be examined carefully.
However, in terms of handling disclosures in the workplace, the employer may wish to adopt a more purposive approach. In a financial services context, the FCA and PRA rules require employers to investigate "reportable concerns" which are far broader than matters which qualify for protection under the statutory whistleblowing regime. In any event, and regardless of the industry context, if the nature of an employee's complaint is unclear, the employer should request further information as required so that there is greater scope to investigate wrongdoing in a meaningful way. Clarity about the scope of an investigation will reduce the likelihood of whistleblowers feeling that their concerns have not been addressed, with the result that they are more likely to go outside the organisation or bring claims.