07 April 2016

Whistleblowing claims: scope for tactical disclosures?

This article was written by Tamsin Rickard, Professional Support Lawyer

Whistleblowing claims have become an increasingly powerful tool for the disgruntled claimant.  Such claims attract uncapped compensation, require no minimum period of service and do not require the claimant to assert that their treatment was on the basis of a protected characteristics, such as race or religion.

Instead, in order to be protected under the whistleblowing legislation, a claimant must show they have been treated less favourably, or dismissed, for making a qualifying disclosure.  This means a disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and tends to show one or more of certain specified kinds of wrongdoing, including a failure to comply with a legal obligation.

Two cases reported this month consider the circumstances in which two important elements of that test – the disclosure of information and the public interest element – will be met.  

“In the Public Interest”

A brief recap of the background: despite being introduced by the Public Interest Disclosure Act 1998, qualifying disclosures did not (initially) require any public interest element.  This was made clear in the 2002 case of Parkins v Sodexho which ruled that a disclosure about breach of an employee’s own terms and conditions of employment could be a qualifying whistleblowing disclosure (as it concerned a breach of a legal, ie contractual, obligation) – despite concerning a private matter.

This was controversial, seeming to widen the scope of the legislation outside its original public interest remit. In 2013 the government added a new proviso to the legislation that a disclosure must be (in the reasonable belief of the disclosing person) “in the public interest” in order to qualify for protection under the legislation. 

However, this amendment did not explicitly exclude breaches of terms and conditions of employment from being in the public interest.

Since then a series of cases have found that the public interest test is satisfied by disclosures which appear to concern primarily private employment law issues: where a claimant’s whistleblowing disclosure involved commission arrangements for 100 employees of a single business in the Chestertons v Nurmohamed case, and more recently in Underwood v Wincanton where the qualifying disclosure related to only a handful of people.

The recent case of Morgan v Mencap may open the door further.  Ms Morgan’s alleged qualifying disclosure related to her own working conditions (she alleged they were cramped, and causing her discomfort).  Despite this appearing to relate solely to her own situation, the EAT has ruled that her claim should not be struck out at a preliminary stage but should be allowed to proceed to full evidence on why she believed these disclosures to be in the public interest.   Given this is only a preliminary ruling, undue weight should not be given to this ruling, but it does underline tribunal's unwillingness to exclude claims at a preliminary stage, even if there appears to be little "public interest" involved.    

A chink of light for employers, however: the Chestersons v Nurmohamed case is being appealed and is due to be heard later this year, so this issue may be revisited.

Disclosure of information

Caselaw has previously established a further hurdle for claimants: that a qualifying disclosure must include information, and not merely an allegation.  The example given of a disclosure of information was: “the wards have not been cleaned for the past two weeks.  Yesterday, sharps were left lying around”.  In contrast, a statement to the effect “you are not complying with Health and Safety requirements” might be a mere allegation, even if referring to the same facts. 

However, employers hoping to defeat a whistleblowing claim on the basis that a particular disclosure does not disclose information may be disappointed after another recent case.  

In Kilraine v LB Wandsworth, the respondent employer attempted to strike out a whistleblowing claim on the basis that a disclosure was an allegation and not a disclosure of information.  The disclosure, in essence, was a statement that the claimant's line manager had failed to support her in a meeting when the claimant had raised a safeguarding issue.  The Employment Tribunal found this was an allegation and so could not constitute a qualifying disclosure.

The EAT disagreed, holding that this disclosure was a mixture of allegation and information, as it provided information about what happened at the meeting.  On this basis, it could constitute a qualifying disclosure and the mingled allegation did not detract from that.  In other words, the test is not “either / or”: an allegation may also contain information and hence be a qualifying disclosure.   

What does this mean for employers?

Whistleblowing disclosures can appear in many shapes and sizes and these cases confirm that some of the legal hurdles claimants must surmount in order to establish a whistleblowing claim are set fairly low.  In general terms, where staff raise concerns about wrongdoing in any form, employers must take steps to ensure that retaliation does not ensue.  That can be easier said than done, particularly where the nature of disclosures brings workers into conflict with management or colleagues.  

Effective whistleblowing and grievance policies can help to provide a route for genuine concerns and an outlet for them to be resolved constructively.  However, these cases also leave the door open to whistleblowing disclosures for tactical reasons and employers should be on their guard.

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