Allegation that supervisor was taking a patient's food was a whistleblowing disclosure

Elysium Healthcare No. 2 Ltd v Ogunlami

An employee suffered whistleblowing detriments following an allegation that his supervisor had been taking a patient’s food.

To be protected against dismissal and/or detriment for whistleblowing, a worker must make a ‘qualifying disclosure’. Such a disclosure must:

  • in the reasonable belief of the worker, be made in the public interest, and
  • show that one of more of specified types of wrongdoing has or is likely to take place (one of which is failing to comply with a legal obligation)

In does not matter that a worker’s belief subsequently turns out to be mistaken - as long as the worker reasonably believed it at the time.

Background

Mr Ogunlami worked as a healthcare assistant looking after vulnerable patients. He complained to the management on various occasions that his supervisor had been taking food from patients which he claimed breached company policies, was a disciplinary issue and could have safeguarding issues. He brought a whistleblowing claim alleging that he’d suffered various detriments because of these complaints, among them being rejected for a post and being moved without his consent to a new work location. A tribunal upheld his complaint that he had made protected disclosures and awarded him £7,500 compensation for injury to feelings. His employer appealed, arguing that the complaints were not qualifying disclosures because Mr Ogunlami had not provided enough evidence that his complaints tended to show a breach of a legal obligation and that the public interest element of the legislative test had not been satisfied.

EAT decision

The appeal was dismissed.

The evidence showed that Mr Ogunlami believed the actions of his supervisor were more than morally wrong. His evidence was that the conduct involved a breach of company policy and could lead to disciplinary action. Notwithstanding that he had not said so in express terms, this, held the EAT, was sufficient to establish a belief that the information tended to show a breach of a legal obligation (i.e. breach of an employment contract). While not all breaches of company policy will amount to breach of an employment contract, in the EAT’s view they typically will do so. The EAT stressed that whistleblowers should not be expected to use precise legal terminology – to do so would impose too high a requirement on a worker.

As to the public interest issue, the EAT was satisfied that the mistreatment of vulnerable members of society readily satisfied the public interest requirement. The tribunal had correctly held that Mr Ogunlami subjectively believed that his disclosure was in the public interest.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0116_18_1202.html

Comment

This case is a useful reminder that the test is not whether there has in fact been a breach of a legal obligation but whether the employee reasonably believes there to have been one. Too often employers will say that it cannot be whistleblowing because the employee is wrong.