Employment Law Cases
Allegations and whistleblowing protection
Kilraine v London Borough of Wandsworth
An employee did not make protected disclosures when she complained to her employer about bullying, harassment, inappropriate behaviour and lack of managerial support over a safeguarding issue.
To benefit from whistleblower protections, a worker must first show that they made a ‘disclosure qualifying for protection’ under s.43B of the Employment Rights Act 1996. Such a disclosure must involve ‘information’ which, in the reasonable belief of the worker making the disclosure, tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, and that the worker also reasonably believed that he or she made the disclosure ‘in the public interest’.
Following her dismissal, Ms Kilraine brought a whistleblowing claim against her employer, arguing that she had made a number of protected disclosures during her employment and had suffered detriment and was dismissed as a result. The alleged disclosures included a letter sent to the assistant director of children’s services stating that the council was failing in its legal obligations towards her in respect of bullying and harassment, and that she had been subjected to ‘numerous incidents of inappropriate behaviour’. The disclosures also included an email to HR in which she complained that her line manager had failed to support her after she had raised a safeguarding issue.
A tribunal dismissed her complaints on the basis that her ‘disclosures’ were actually just allegations and didn’t contain any ‘information’. The EAT upheld this, although on slightly different grounds. Ms Kilraine appealed.
Court of Appeal decision
Her appeal was dismissed.
The Court of Appeal held that, when considering whether a disclosure is protected, tribunals do not need to look to whether it is ‘information’ or an ‘allegation’ – the law doesn’t provide for this dichotomy and these are not always mutually exclusive - an allegation could be a disclosure as well.
Rather tribunals should examine the alleged disclosure to see if it has sufficient factual content and specificity such as is capable of tending to show one of the six relevant failures in s. 43 of the Employment Rights Act 1996, including a criminal offence, non-compliance with a legal obligation and/or health and safety issues.
Ms Kilraine’s allegations were not disclosures qualifying for protection because they were simply non-specific.
Link to judgment: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1436.html
Do not automatically assume that any correspondence from an employee amounts to a protected disclosure. Of course, if the matter proceeds to a grievance hearing then at this stage the full details will often be forthcoming. However, in situations such as this, when there has been no hearing and an employee complains after the event of whistleblowing, you should always consider first whether this is a qualifying disclosure at all.
For employees, if they do believe that they are making a protected disclosure then they should be specific in their complaint.