Whistleblowing – supporting an allegation with information

29 June, 2018
by: Cripps Pemberton Greenish

In Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436 the Court of Appeal considered the circumstances in which allegations made by a worker may amount to a ‘protected disclosure’. The act of making a protected disclosure is commonly referred to as ‘whistleblowing’.

Protected disclosures

A protected disclosure is a disclosure of information which, in the reasonable belief of the worker making the disclosure, shows that one or more of six specified types of malpractice has taken place, is taking place or is likely to take place. These practices include the commission of a criminal offence, the endangerment of an individuals’ health and safety or a failure to comply with legal obligations. Where a disclosure benefits ‘protected’ status, the employee who makes it gains enhanced protection from dismissal. If the reason, or the principal reason, for dismissing an employee is that they have made a protected disclosure, that dismissal will be automatically unfair.

Allegation, disclosure of information, or both?

The definition of a protected disclosure makes clear that a worker must actually disclose information in order for this act to attract protection. Established case law on whistleblowing states that a mere allegation or assertion of malpractice by an employer does not amount to a protected disclosure.

Ms Kilraine brought proceedings before the Employment Tribunal alleging that she had been subjected to a detriment and subsequently dismissed by her employer for making four disclosures. These disclosures, she argued, were protected by law. Her case was dismissed, with the Tribunal ruling that each of these disclosures amounted only to an allegation rather than a “disclosure of information”.

Having failed with an appeal to the Employment Appeal Tribunal, Ms Kilraine took her claim to the Court of Appeal. This further appeal focused on two of her alleged protected disclosures. The substance of each appeal was the Employment Tribunal’s error in judgement in suggesting that there is a clear and irreconcilable difference between an ‘allegation’ and a ‘disclosure of information’.

The Court of Appeal dismissed Ms Kilraine’s appeal. It stated that, whilst the Employment Tribunal had made an error, it had reached the correct decision. With regard to one of Ms Kilraine’s disclosures, she failed to disclose information with enough specific, factual content to show any malpractice of the types listed in the legislation. In respect of the other disclosure it was decided that although Ms Kilraine had made a disclosure of information, this information did not properly demonstrate any alleged malpractice on the part of her employer. 

Consequences of the Kilraine decision

This decision is useful in clarifying that an allegation may also amount to a disclosure of information, rather than these two concepts being incompatible. In assessing whether a disclosure will be protected, a number of factors are important. Most importantly, a disclosure must include supporting information about the malpractice complained of.

The Kilraine decision provides welcomed clarity on how to determine whether a disclosure will be protected. However, it also serves as a reminder to workers to provide sufficient details in order to benefit from statutory protections.

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