Is it whistleblowing if you make an allegation?

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14 Jun 2016

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Amanda Beattie, Regional Litigation Manager at Croner, looks at whether allegations regarding an employer can be a valid protected disclosure for a whistleblowing claim, following the case of Kilraine v London Borough of Wandsworth heard recently at the Employment Appeal Tribunal. Whistleblowing claims are relatively common in the Employment Tribunal and arises when a worker alleges that they have a suffered a detriment, (which can include being dismissed) because they have made a protected disclosure. Legislation provides specific criteria in relation to what a protected disclosure involves, which includes:

  • The disclosure of information which is in the reasonable belief of the worker, is made in the public interest and tends to show a criminal offence has been committed; a person has failed or will fail to comply with a legal obligation; a miscarriage of justice has or will occur; health and safety of any person has or will be endangered; the environment has or is likely to be damaged or any of the preceding issues has or is likely to be concealed;
  • The disclosure is made to the employer or other responsible person and in certain circumstances to other prescribed persons outlined in the legislation.
In the current case, the Claimant was employed as a manager by the London Borough of Wandsworth’s education authority. The Claimant issued a whistleblowing claim asserting that she had made four protected disclosures and because of these disclosures, she had suffered detriment, which included her dismissal. The third alleged protected disclosure was a letter from the Claimant’s solicitor to her employer, which alleged that they were failing in their legal obligations in regard to implementing their bullying and harassment policy and procedure and that there had been 'numerous incidents of inappropriate behavior towards me, including repeated sidelining'. The Employment Tribunal determined that none of the four disclosures met the criteria of being a protected disclosure and her claim was dismissed. In relation to the third alleged protected disclosure, the Tribunal considered that the solicitor letter was not a matter of information but was an allegation. The Claimant appealed this decision to the EAT. The EAT held that within the legislation there is no distinct separation between the words of “information” and “allegation” and therefore, the question for the Employment Tribunal is whether it is a disclosure of information and even if this information can also be construed as an allegation, then that is of no significance.  However, in the present case in relation to the third allegation, the EAT found that the Employment Tribunal were correct in concluding that the solicitor’s letter was not conveying information, as it said nothing specific. Further, even in the event it was construed as conveying information, it did not allege a criminal offence or any other matter which fulfilled the criteria for a protected disclosure. Accordingly, the Claimant’s appeal was dismissed. Consequently, this case provides helpful guidance to Tribunals in relation to what is and is not of significance in relation to what is contained in alleged protected disclosure. In that, even if the information is also an allegation, it can still be providing information for the purposes of a whistleblowing claim, if specific facts are conveyed which tend to show the areas outlined above.

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