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Whistleblowing: What is a disclosure?

Posted on 1st March 2016
Case law

To be a protected disclosure information must be provided rather than just making an allegation.

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Julie Temple Julie
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employment tribunals should not get too bogged down in the distinction between workers making allegations and disclosing information. Only the latter can form a protected disclosure

Kilraine v London Borough of Wandsworth EAT 2016

The Facts

Ms Kilraine made four complaints.  Only three formed the basis of the decision:
  1. There was a health and safety issue with a young boy masturbating in class;
  2. The Borough was failing in its legal obligation relating to bullying and harassment of her, which she referred to as ‘inappropriate behaviour’;
  3. She had not been supported by her line manager when she raised a safeguarding issue with them.
Ms Kilraine was suspended and investigated for making unfounded allegations against colleagues.  Her employment later ended (whilst still suspended) on grounds of redundancy. 

Ms Kilraine claimed that her dismissal was automatically unfair and she had been subjected to detriment as a result of making protected disclosures.

The employment tribunal decided that the first disclosure was a protected disclosure but was out of time as her claim for detrimental treatment had been presented more than three months after she was suspended.  The second and third disclosures were not disclosures of information tending to show a breach but were mere allegations.  They were not, therefore, protected disclosures.

The EAT Decision

Ms Kilraine successfully appealed. 

The EAT decided that the detriment for suspension did not just arise when Ms Kilraine was suspended but lasted throughout the period of suspension.  Ms Kilraine's claim in relation to the first disclosure was therefore in time.  Her claim however failed as the employment tribunal had found that the suspension had not been because of this disclosure.

The EAT, in relation to the second and third disclosures, held:
  • The second disclosure was an allegation.  It did not provide information.  The EAT also held that the disclosure did not tend to show that a criminal offence had or would be committed or that the Borough was or would be in breach a legal obligation.  'Inappropriate behaviour' was too vague.
  • The third disclosure was an allegation but also provided information about what had happened during the meeting. However, Ms Kilraine failed to show that the information she gave tended to show that there had been a breach of any legal obligation or she had any reasonable belief that there was one. 
The EAT commented that employment tribunals should not get too bogged down in the distinction between workers making allegations and disclosing information. Only the latter can form a protected disclosure.  The EAT was clear that a complaint can be one or other or both.

Commment

This case is a reminder of just how complicated claims involving protected disclosures can be as well as the importance of seeking professional and experienced legal advice about individual cases.  Technical arguments can sometimes win the day!

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