Whistleblowing – protected disclosures
Sections 43A-43L of the Employment Rights Act 1996 protect workers who report malpractice (a ‘disclosure’) by their employer and are then treated badly. For a disclosure to be protected it must contain ‘information’ which the employee reasonably believes is in the public interest. It must also show some sort of wrongdoing (such as a criminal offence or breach of a legal obligation). Can an allegation be ‘information’?
Mrs Kilraine claimed she had made protected disclosures to her employer, the London Borough of Wandsworth. She said she was then treated badly and dismissed. She brought unfair dismissal and detriment claims, based in part on making protected disclosures. The Court of Appeal had to decide whether one of Mrs Kilraine’s protected disclosures had been correctly struck out for containing no information.
The Court of Appeal gave helpful guidance on the potential overlap between an allegation and information:
‘You’re breaching health and safety obligations’ – these words are too general to be information. They contain no facts;
‘There are needles all over this ward floor, you’re in breach of health and safety obligations’ – this is an allegation, but it also contains information (about the needles).
Context is relevant too. If an employee says ‘you’re breaching health and safety obligations’ whilst gesturing to the needles, that combined communication could also be ‘information’.
One of Mrs Kilraine’s disclosures was just an allegation with no information. It had been correctly struck out. This case may help employers to differentiate between simple allegation and those comments which might qualify as protected disclosures if other parts of the legal test are met.