Whistleblowing - Information or Allegation?
In Cavendish Munro Professional Risks Management Limited v Geduld, the Employment Appeal Tribunal (EAT) established the principle that, for the purposes of the whistleblowing provisions of the Employment Rights Act 1996, to qualify for protection a disclosure must be the giving of information as distinct from an allegation. In the recent case of Kilraine v London Borough of Wandsworth, the Court of Appeal agreed with the EAT that care must be taken when applying this principle as the two are not mutually exclusive.
Ms Kilraine was employed by the London Borough of Wandsworth as an Education Achievement Project Manager until her employment ended in September 2011. The reason given for her dismissal was redundancy. However, she claimed that she had been subjected to detriments and was dismissed for making four protected disclosures. She subsequently brought claims against her employer for unfair dismissal and automatic unfair dismissal.
The Employment Tribunal (ET) upheld her unfair dismissal claim on the basis that her employer had failed to consult with her. However, she was awarded no compensation after the ET found that she would have been made redundant in any event. Her claim that she had been automatically unfairly dismissed due to whistleblowing activities also failed. In reaching its decision, the ET found that the third and fourth disclosures she cited had not conveyed any information at all, but were merely allegations.
The EAT dismissed Ms Kilraine's appeal against the ET's decision. However, whilst it judged that the ET was correct in finding that the fourth disclosure, an email sent to a human resources officer saying that she had reported a safeguarding issue to a colleague but had not received a satisfactory response, did not amount to a protected disclosure, it had erred when stating that it was nothing more than an allegation. Whilst it did make an allegation, in the EAT's view it also gave information about what was or was not said during a meeting that took place after Ms Kilraine had reported the issue. The disclosure contained in the email was, however, too vague to qualify for protection. The EAT went on to caution against ETs being 'too easily seduced' into asking whether a disclosure was one or the other when 'reality and experience suggest that very often information and allegation are intertwined'.
The Court of Appeal upheld the EAT's decision. The email sent by Ms Kilraine did provide information. However, it could not found a whistleblowing claim in that it did not tend to show that she believed that a person had failed, was failing, or was likely to fail, to comply with a legal obligation.
Whether an identified statement or disclosure in any particular case does provide information that meets the standard required to qualify as a protected disclosure will be a matter for evaluative judgment by the ET based on all the facts of the case, including the context in which the statement was made, where this provides relevant evidence, as well as the words spoken.