Worker's defamation complaint could be a protected disclosure

Ibrahim v HCA International Ltd

A worker’s complaint to HR that he was being defamed by rumours that he had breached confidentiality was capable of amounting to a protected disclosure under the whistleblowing provisions of the Employment Rights Act.

Background

Mr Ibrahim, an interpreter in a hospital, asked a senior manager to investigate rumours circulating among patients and their families that he was responsible for breaches of patient confidentiality. He wanted to ‘clear his name’. The manager referred this to HR who investigated and rejected his complaint. When he was later dismissed, Mr Ibrahim brought a tribunal claim of, among other things, detriment for having made a protected disclosure under s.47B of the Employment Rights Act 1996.

A tribunal dismissed his whistleblowing claim on two grounds. First, a complaint that false rumours have been spread is not a disclosure of information that tends to show breach of a legal obligation as required by the Act. Secondly, Mr Ibrahim’s complaint had not been made ‘in the public interest’ – rather it had been made with a view to clearing his name and re-establishing his reputation. Mr Ibrahim appealed. The EAT dismissed Mr Ibrahim’s appeal.

The reference in the legislation to a ‘legal obligation’ is broad enough to include tortious duties, such as defamation, and breach of statutory duty, such as those contained in the Defamation Act 2013. Mr Ibrahim’s complaint was clearly an allegation that he was being defamed and, although he might not have used the precise legal terminology, his allegation was clear in all but name. While Mr Ibrahim won on this point, he ultimately lost because the EAT upheld the tribunal’s finding that his complaint was not in the ‘public interest’. Mr Ibrahim appealed.

Court of Appeal decision

The appeal was allowed.

In the period between the end of the tribunal hearing and the reserved judgment, the Court of Appeal had given its decision in Chesterton Global v Nurmohamed which confirmed that a tribunal needed to ask whether a claimant subjectively believed that the disclosure was in the public interest, and whether that belief was reasonable. The tribunal in this case had not done so – and had focused on Mr Ibrahim’s motive rather than his subjective belief. The case was sent back to the same tribunal to consider this point.

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2019/2007.html

Comment

When a case is appealed, it is not possible for the court to substitute their own decision for the decision of the court who heard the evidence. If a court or tribunal has not asked itself the right question, then the case must be returned to the tribunal to ask itself that question.

The Court of Appeal interestingly cast doubt on whether a claimant could reasonably believe a disclosure concerned with being personally defamed was in the ‘public interest - 'it seems counter intuitive to describe as a disclosure in the public interest a complaint by a worker to management that someone is spreading false rumours about him’. However, this comment was strictly obiter (i.e. not central to the decision and not binding).

Although ‘in the public interest’ does not need to be the public at large, it does need to be more than just a personal issue for one individual. Mr Ibrahim’s only chance of success is showing that he reasonably believed it was in the public interest to point out that a large public employer such as the NHS allowed this kind of breach of the law to take place and this was in the interests of all NHS employees.