Whistleblowing: Alleging a breach of a tortious duty, such as the duty not to defame, can form the basis of a protected disclosure

Whistleblowing: The Employment Appeal Tribunal has held that an allegation that there has been a breach of a tortious duty, such as the duty not to defame, amounts to an allegation of a breach of a legal obligation for the purpose of bringing a whistleblowing claim (Ibrahim v HCA International Ltd UKEAT 010518)

Background

Under section 43B of the Employment Rights Act 1996 (ERA 1996), in order for a disclosure to amount to a 'qualifying disclosure' for the purposes of a whistleblowing claim:

• the subject matter must be within the scope of the protection:  the disclosure must make one of a certain specified type of allegation of wrongdoing, one of which is that "a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject";
• the worker must reasonably believe that the disclosure tends to show one or more of those specific types of wrongdoing;
• the worker must hold a reasonable belief that the disclosure is made in the public interest.

Facts

The Claimant was an International Patient Co-ordinator at a private hospital (Respondent), which involved interpreting for the Arabic speaking patients. The Claimant made a complaint that he had heard false rumours being spread amongst patients and their families that he had breached patient confidentiality, which he refuted. He wanted to clear his name and restore his reputation. However, approximately 7 months later he stopped working for the hospital.  3 months after that he subsequently brought various claims in the employment tribunal (Tribunal), including a whistleblowing claim. 

Employment Tribunal – Preliminary Hearing

The whistleblowing claim was originally considered in a preliminary hearing, to determine whether the complaints made by the Claimant amounted to a protected disclosure. At that hearing, the Tribunal dismissed the claim, finding that complaining that false rumours have been made does not amount to a disclosure of information tending to show that someone has breached a legal obligation or that there has been a miscarriage of justice.  The Tribunal considered that the Claimant had not identified any legal obligation that had been breached by spreading false rumours and that, in any event, the disclosures made by the Claimant were not made in the public interest. 

Employment Appeal Tribunal (EAT)

The Claimant appealed to the EAT on the basis that the Tribunal had been wrong to find that the disclosure made by the Claimant had not showed someone breaching a legal obligation because the obligation was clearly a breach of the duty not to commit defamation.  The Claimant's other ground of appeal was that the Tribunal had been wrong to find that the Claimant's disclosures failed the "public interest" test. 

The first question considered by the EAT was what amounts to an allegation of a breach of legal obligation? 

The EAT held that the whistleblowing legislation is broad enough for "breach of legal obligation" to include tortious duties, including defamation and breach of the statutory duty not to defame, as contained in the Defamation Act 2013. As a result, the EAT agreed with the Claimant that his complaint that damaging false rumours were being circulated about him that he had breached patient confidentiality was clearly an allegation that he was being defamed.  Although the Claimant may not have used the word "defamation" at the original preliminary hearing, the allegation was clear in all but name and use of precise legal terminology.  As such, the Claimant's first ground of appeal succeeded.

NB: The Respondent argued that this ground of appeal was a new argument put forward by the Claimant, as there had been no mention of the tort of defamation at the preliminary hearing.  As such, the Respondent argued that the Claimant needed permission to advance this argument at the appeal.  However, the EAT held that, although the Claimant had not mentioned breach of the tort of defamation at Tribunal, he had mentioned defamation in his original ET1 claim form, which was enough and so no permission was required.  

Having overturned the Tribunal's decision on the first ground of appeal, the EAT then considered the public interest test. 

Applying the guidance from the Court of Appeal in Chesterton Global Limited (T/A Chestertons) v Nurmohamed [2017] EWCA Civ 979, the EAT held that the Tribunal must ask itself (a) whether the worker believed at the time that he was making it that the disclosure was in the public interest and (b) if so, whether that belief was reasonable. The EAT noted that what the Claimant believed is a finding of fact for the Tribunal, and it was clear in this case that the Claimant's only concern had been the false rumours made about him and the effect of those rumours on his reputation. This was clearly only a personal concern and therefore not in the public interest. 

The Claimant tried to bring an argument that he was concerned for the integrity of data protection at the hospital, but the EAT held there was no evidence of this being a concern to him at the time of his disclosure. The second ground of appeal therefore failed, which meant that the Claimant’s appeal was dismissed. 

Comment

The case highlights a couple of useful take away points for whistleblowing cases, including:

• Precision pays dividends when framing the issues in a case. Here, if the Claimant had not made a passing reference to defamation in his claim form, he would have had to apply for permission to appeal on this point, which may not have been successful. Then, having made reference to defamation in his claim form, the Claimant would have been prudent to raise it at the Tribunal hearing, as doing so may have avoided the need for an appeal on this issue.  As such, this case is another reminder to carefully analyse the precise wording of any claims received, as much can turn on the exact wording used;
• Whilst a belief in the public interest does not need to be the predominant motive for making a whistleblowing disclosure, this decision reaffirms that, for Claimants to succeed in such a claim, they must be able to present clear evidence of a subjective belief that their disclosure was made in the public interest. It will be worthwhile for employers to test that issue in every case, as, without any such evidence, a whistleblowing claim cannot succeed.

Ibrahim v HCA International Ltd

This article was drafted by Florence Millar, Trainee Solicitor