EMPLOYERS will be aware that they cannot dismiss or subject to detriment any worker who has made a protected disclosure (a whistleblower). Since the 12-month cap on unfair dismissal compensation was introduced, many employees are including whistleblowing elements to their unfair dismissal claims. The reason for this is that there is no cap on the compensation available in such claims. Remember too that an employee with less than 2 years’ service can bring an automatically unfair dismissal claim based on whistleblowing.
Qualifying disclosure
I will recap on the basics as it has been a while since I have written about whistleblowing. To benefit from whistleblower protection, a worker must make a qualifying disclosure, being a disclosure of information which in the reasonable belief of the worker tends to show:-
- That a criminal offence has been or is likely to be committed;
- That a person has failed or is likely to fail with any legal obligations to which he is subject;
- That a miscarriage of justice has occurred or is likely to occur;
- That the health and safety of an individual has been or is likely to be endangered;
- That the environment has been or is likely to be endangered; or
- That information tending to show any of the above is being deliberately concealed
Allegation or information
There has been a reasonable amount of judicial attention to the concept of whether an allegation made by a worker can amount to a disclosure of information. See, for example, Cavendish Munro Professional Risks Management Ltd v Geduld a case in which the EAT held that a qualifying disclosure must relay information [facts] and not merely raise an allegation.
In Kilraine v London Borough of Wandsworth, the Court of Appeal had to grapple further with this issue. Mrs K, a project manager in education, made complaints about bullying, harassment, inappropriate behaviour and a lack of support. Mrs K was subsequently dismissed and she argued that the dismissal was because of her disclosures. Her claim failed on the basis that the disclosures did not convey information that tended to show any of the bullet points above.
Decision
While her appeal to the Court of Appeal was unsuccessful, the court did clarify that allegation and information are not mutually exclusive. An allegation may indeed convey information tending to show one of the above. However, a general non-specific statement devoid of any factual content is unlikely to meet the qualifying disclosure test.
Take away tips
1. If you are an employer – get a whistleblowing policy.
2. Do not dismiss an employee for raising allegations which might constitute whistleblowing.
3. If in doubt, take advice.
For more information and advice on whistleblowing and employment law please contact the Blackadders Employment Team.
Jack Boyle, associate solicitor, Blackadders LLP