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Whistleblowing. In tune again

Referee iStock 000006306507XSmall 146x219Adam Ohringer considers the implications of a Court of Appeal ruling in a whistleblowing case involving a London borough.

To benefit from whistleblower protections, a worker must first show that she made a ‘disclosure qualifying for protection’ under s.43B of the Employment Rights Act 1996.  Until 25 June 2013 it was sufficient to show that there had been ‘any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show …. (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject…’.

As demonstrated in Parkins v Sodexo [2002] IRLR 109, this could cover a complaint made by a worker about a breach of his own contract. Indeed, the range of complaints which would benefit from protection appeared very wide indeed. Anybody working in a safety-critical or otherwise highly regulated workplace would be making qualifying disclosures all the time simply as part of their normal work.

The problem this created was that almost any worker could point to a qualifying disclosure which they had made in the days or weeks preceding an event which was detrimental to them and complain that they had been subjected to that detriment because they had blown the whistle. The impression, at least among employers, was that it was just too easy to make such a complaint. The gate to whistleblowing protection was too wide.

As a result, since 25 June 2013, a disclosure will only qualify for protection if, in addition to the above requirements, the worker also reasonably believed that he made the disclosure in the public interest. As illustrated by the Court of Appeal in Chesterton Global Ltd v Nurmohamed [2017] IRLR 837, the test now only applies where the disclosure is about matters of public significance.

Until the public interest test was introduced, the EAT made efforts to interpret s.43B in such a way as to weed-out claims based on disclosures which it didn’t think warranted any special protection.

In Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436, one such disclosure stated ‘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 Employment Tribunal applied Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38 and concluded that this did not qualify for protection because, as in Geduld, there was an allegation but there was no ‘disclosure of information’.

Langstaff J in the EAT cast doubt on Geduld. He said that an allegation and information are often intertwined. He suggested that Tribunals should apply the test under s.43B without attempting difficult and subtle distinctions of this kind. However, even adopting this alternative approach, Langstaff J found that the disclosure did not qualify for protection. It was simply too vague to be a disclosure of information or to be an allegation that a legal obligation had been breached.

The Court of Appeal agreed that the guidance in Geduld was incorrect in this regard and endorsed the points made by Langstaff J in the EAT’s Judgment. It however agreed with the EAT that ‘In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show [a breach of a legal obligation].’

Sales LJ continued:

Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in Chesterton Global at [8], this has both a subjective and an objective 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. (para. 36)

For this reason, the Court of Appeal concluded, as the EAT had, that the Tribunal had taken the wrong route but ultimately reached the right decision. Ms Kilraine’s statement was not a disclosure qualifying for protection not because of any fine legal points but because it was simply non-specific.

Conclusions

Now that the public interest requirement has been introduced as a valve to control what is and is not a disclosure qualifying for protection, the Courts are taking a more holistic approach to what does and does not satisfy the statutory test. Fine legalistic distinctions are discouraged and the question is ultimately whether the disclosure is sufficiently specific to make the worker a whistleblower and not just a critic.

Adam Ohringer is a barrister at Cloisters. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

Chris Milson and Rachel Barrett, also from the same set, represented the Appellant.

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