The law says that when bringing a complaint about making a protected disclosure (blowing the whistle), claimants have to show that there is a disclosure of information which tends to show a breach of a legal obligation. In Ibrahim v HCA International Ltd, the Employment Appeal Tribunal (EAT) held that although a complaint about defamation could constitute a protected disclosure, Mr Ibrahim had not made it “in the public interest”.
Mr Ibrahim was an interpreter for Arabic speaking patients at a private hospital. On 15 March 2016 he met with a senior manager and asked her to investigate rumours that he was responsible for breaching patient confidentiality.
She referred the matter to the Chief Human Resources Officer who met with him on 22 March. Mr Ibrahim made clear on both occasions that he wanted to “clear his name and restore his reputation”.
When Mr Ibrahim was subsequently dismissed, he brought claims alleging that he had made two protected disclosures, the first on 15 March and the second on 22 March, under section 47B of the Employment Rights Act (ERA) 1996. The tribunal first had to decide, at a preliminary hearing, whether he had made a qualifying disclosure under section 43 ERA.
Section 43 defines a "qualifying disclosure" as “any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show … that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he [sic] is subject”.
Section 47B states that a worker has the right not to be subjected to any detriment as a result of an act (or failure to act) by their employer or another worker working for that employer on the ground that the worker has made a protected disclosure.
The tribunal held that an allegation of false rumours could not amount to a disclosure of information tending to show that someone had breached a legal obligation, not least because it was not clear what legal obligation might have been breached when the alleged false rumours were being spread about him.
However, if it was wrong on that point, it went on to consider the “public interest” requirement under section 43. Following the decision in Chesterton Global Limited (T/A Chestertons) v Nurmohamed (weekly LELR 543), it had to determine (a) whether the worker subjectively believed at the time he was making it that the disclosure was in the public interest and (b) if so, whether that belief was objectively reasonable.
Although the tribunal accepted that a disclosure of information tending to show that patient confidentiality has been breached would be a matter of public interest, it found that Mr Ibrahim did not have a subjective belief in the public interest element of his disclosure. On the contrary, his concern was only that false rumours had been made about him, and the effect of those rumours on him.
The EAT held that the tribunal was wrong that a complaint that other members of staff were falsely blaming him for breaches of patient confidentiality could not constitute a “legal obligation” under section 43 ERA, as the provision was broad enough to include defamation, which was the gist of his complaint even if he had not used that terminology.
However, the tribunal found, as a matter of fact, that Mr Ibrahim’s concerns were purely personal ones namely that he had been defamed. Although the EAT considered the tribunal could have more clearly applied the two-stage legal test in Chesterton by first considering if he had a subjective belief and then if his belief was objectively reasonable, it had found that Mr Ibrahim did not have a subjective belief in the public interest of his disclosure, a decision it was entitled to come to on the evidence.
This case confirms that an allegation of defamation can amount to a protected disclosure. However, a belief that a person’s reputation is damaged will not satisfy the requirement to show that the disclosure was in the public interest. Concern for the integrity of data protection, on the other hand, might be held, in another case, to be in the public interest.