What is it?
Whistleblowing is the common term for what, in technical legal terms, employment lawyers would define as a worker being subjected to a “detriment” because they have made a “protected disclosure.” Under section 43A of the Employment Rights Act 1996, such claims broadly comprise four elements:
- there must be a “disclosure” of information within the meaning of the 1996 Act
- the disclosure must be a “qualifying disclosure;” and
- the disclosure must have been made by the worker in a way that is consistent with sections 43C to 43H of the 1996 Act.
- the worker must have been subjected to a “detriment” or dismissal on the grounds of having made the disclosure
What is disclosure of information?
In Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38 the Employment Appeal Tribunal held that merely making allegations about a wrongdoing was not enough to amount to disclosure of information, as the latter required facts to be imparted. The Tribunal gave the example whereby saying “[t]he wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around” would be the disclosure of information, whereas simply saying “you are not complying with Health and Safety requirements” would be a mere allegation.
The distinction between an allegation and information can, however, be a fine one for employment lawyers to make. For that reason, the Court of Appeal, in Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436 observed that it “would caution some care in the application of the principle arising out of Cavendish Munro… The dichotomy between “information” and “allegation” is not one that is made by the statute itself. It would be a pity if Tribunals were too easily seduced into asking whether it was one or the other when reality and experience suggest that very often information and allegation are intertwined.”
What makes a disclosure “qualifying”?
A disclosure will be a “qualifying” one if the worker has a reasonable belief that the disclosure is in the public interest and “tends to show one or more of the following”:
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.
A disclosure will be a “qualifying” one even if the worker’s belief subsequently transpires to be incorrect, provided that the belief was reasonable (see Darton v University of Surrey [2003] IRLR 133 though, as a matter of fact and common sense, the truth of the worker’s belief will have an impact on the Employment Tribunal’s assessment of whether the belief was reasonable. Furthermore, the test is subjective in that the particular characteristics of the worker must be considered; accordingly, the test is not whether a hypothetical reasonable worker would have held such a belief (see Korsahi v Abertawe Bro Morgannwg Health Board [2012] IRLR 4.
Public interest vs personal interest
In Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979, the court in effect held that a disclosure could be made in the public interest even if it was partly made for a private interest because “[t]he advantage of achieving a bright line” between public and private interests could “[not] be obtained by distorting the natural meaning of the statutory language”. Where public and private interests are mixed, the Tribunal must determine whether there is a sufficient public interest.
Detriment
In Jesudason v Alder Hay Children’s NHS Foundation Trust [2020] EWCA Civ 73, the court held that “in order to bring a claim under section 47B, the worker must have suffered a detriment … the concept of detriment is very broad and must be judged from the view point of the worker. There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment.” A detriment can include a wide range of acts, such as socially isolating a worker in the workplace, criticising their performance without justification, or even dismissal.If the detriment in question is dismissal then, under section 103A of the 1996 Act, the latter will be automatically unfair, even if the employee lacks the two years continuous service ordinarily required to being an unfair dismissal claim.
If a worker is made to suffer a detriment because they have made a protected disclosure, then they could have a valid whistleblowing claim and may wish to consult an employment law barrister.
Compensation
Successful whistleblowing claims can result in substantial compensation awards. This is because a claimant may be able to prove that the mere fact of having been a “whistle blower” has led to them being stigmatised within their field and has thus harmed their career prospects. Compensation to restore the claimant back to the position they would have been in had the detriment not been suffered, may therefore be appropriate. Awards may thus be very high, depending on the nature of the claimant’s work and the level of their salary.
Demstone Chambers
Demstone Chambers are employment law barristers. We have appeared in high profile whistleblowing claims in the Employment Tribunal. We are based in Milton Keynes, but we can travel to different parts of the UK to help clients For further information or to speak to one of our employment barristers, do not hesitate to get in touch.