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 (as per the Court of Appeal in Chesterton Global), 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.

EAT decision

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’. The tribunal had made a clear finding of fact that his concern was only that false rumours had been made about him, and the effect of those rumours on him, and that he did not have a subjective belief in the public interest element of his disclosure.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2018/0105_18_1309.html

Comment

This case demonstrates just how wide whistleblowing can be interpreted by the tribunals but equally how the requirement for disclosures to be ‘in the public interest’ can cause any claim to fail. However, public interest does not need to be the public at large, it just needs to be more than one and not a personal issue for one individual, as it was here.