Information or allegation
Labour & European Law Review Weekly Issue 468 04 May 2016
Under the law on whistleblowing, claimants have to show that they have a “reasonable belief” that the disclosure falls within one of the definitions of a qualifying disclosure. In Kilraine v LB of Wandsworth, the Employment Appeal Tribunal (EAT) held that the issue for tribunals to consider is not whether a given phrase or paragraph constitutes information or an allegation, but whether it is a disclosure of information.
Ms Kilraine worked as an Education Achievement Project Manager with the local education authority. After she was made redundant at the end of September 2011, she claimed that she had suffered detriments (disadvantages) and had been dismissed because she made four protected disclosures (blown the whistle) in the five or six years prior to her dismissal.
The first, in 2005, was to the effect that she had been discriminated against by Ofsted inspectors on the basis of her race (Irish) and religion (Catholic); the second, in 2008, related to health and safety; the third in 2009 was with regard to a letter she wrote to her employer about being bullied and harassed; and the fourth in 2010 that she had not been supported by her line manager at a meeting with regard to a safeguarding issue.
The tribunal rejected her first complaint on the ground that it had not been made to her employer but to an external organisation. It accepted that the second was a protected disclosure but held that it was out of time. In any event, Ms Kilraine had not proven that the detriments she alleged were because of the disclosure. Likewise, it found that her dismissal was the result of being made redundant, not because of the disclosure.
As to the third and fourth protected disclosures, the tribunal relied on the principle in Cavendish Munro Protected Risks Management Ltd v Gedult that a protected disclosure had to involve the “giving of information” or conveying facts. It held that neither of these disclosed any information but rather conveyed a series of allegations. As such, none of her complaints qualified as disclosures.
The EAT agreed with the tribunal but urged a note of caution in applying the principle in Cavendish Munro as the statute itself did not distinguish between “information” and “allegation”. Tribunals should therefore be careful not to be “too easily seduced into asking whether it was one or the other when reality and experience suggest that very often information and allegation are intertwined”. Instead, the issue for tribunals was not whether a given phrase or paragraph constitutes information or an allegation, but whether it is a disclosure of information. It was irrelevant if it was also an allegation.
In this case, the EAT agreed with the tribunal that the third allegation did “not sensibly convey any information at all”. Even if that was wrong, it was hard to see how it came within the protected disclosure provisions (such as a criminal offence or a failure to comply with legal obligations) as the letter referred to “inappropriate behaviour” which could cover a “multitude of sins”.
As to the fourth and final alleged protected disclosure, the EAT agreed that it did provide information about what was or was not said in the meeting with the manager. However, the tribunal was right to reject it as a qualifying disclosure because Ms. Kilraine had not been able to show that her manager had breached any legal duty. Nor had she been able to show that she reasonably believed there was such a duty.