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Whistleblowing: Did the worker make a disclosure of information or just an allegation? Or is that that the wrong question?

By Martin Fodder

In Kilraine v London Borough of Wandsworth, [2016] UKEAT 0260_15_2601 11,
Langstaff J makes an important point
that should help employment tribunals considering the often vexed question as
to whether the claimant worker made a “disclosure of information” which tended “to show one or more of” the relevant
failures set out in s 43B (1) of the Employment Rights Act 1996.

The high point of a restrictive
approach to the concept of a disclosure of information came in
Cavendish Munro Professional Risks Management Ltd v Geduld [2010]
. The EAT’s decision that the content of Mr
Geduld’s solicitors’ letter to the respondent did not contain a disclosure of
information started by pointing to the references to “information” and an
“allegation” in section 43F of the Act
(which sets out the requirements for converting a qualifying disclosure
to a protected disclosure where the disclosure is made to a prescribed person-
ie usually a regulator). 43F requires that the worker “reasonably believes
….that information disclosed, and any allegation contained in it, are
substantially true”. The EAT said that
it was “instructive” that the two terms were treated differently and could
“therefore be regarded as intended to have different meanings”. The EAT also made
reference to sections 4(1) (b) and (d) of the Sex Discrimination Act which
provided in for the protected acts of

  • having
    “given information” in connection with proceedings under that Act and
  • having
    “alleged” that the discriminator had committed an act contrary to the statute

The EAT continued (in a widely quoted

the ordinary meaning of giving ‘information’ is conveying facts. In the course
of the hearing before us, a hypothetical was advanced regarding communicating
information about the state of a hospital. Communicating ‘information’ would be
‘The wards have not been cleaned for the past two weeks. Yesterday, sharps were
left lying around’. Contrasted with that would be a statement that ‘you are not
complying with Health and Safety requirements’. In our view this would be an
allegation not information.

In the employment context, an employee may be dissatisfied,
as here, with the way he is being treated. He or his solicitor may complain to
the employer that if they are not going to be treated better, they will resign
and claim constructive dismissal. Assume that the employer, having received
that outline of the employee’s position from him or from his solicitor, then
dismisses the employee. In our judgment, that dismissal does not follow from
any disclosure of information. It follows a statement of the employee’s
position. In our judgment, that situation would not fall within the scope of
the Employment Rights Act s.43.”

A similarly restrictive approach was
taken in Smith v London Metropolitan
IRLR 884
where the distinction was between raising
a grievance and disclosing information.
In Goode v Marks
& Spencer plc
UKEAT/0442/09,the EAT said that expressing
an opinion about an employer’s proposal to change an enhanced redundancy scheme
did not amount to making a qualifying disclosure.

there were signs of a different view being taken in other cases. In Royal
Cornwall Hospitals NHS Trust v Watkinson
[2011] UKEAT 0378_10_1708 the
respondent’s contention that the disclosure was only the expression of an
opinion and therefore not a disclosure of information was rejected. In giving
the judgment of the EAT in Western Union Payment Services UK Limited v
[2014] UKEAT/0135/13/LA, HHJ Eady QC stressed the importance of
looking at the context of the statement said to amount to a disclosure. The distinction between an allegation, a statement
of position or opinion and a disclosure of “facts” could, she said, be “a fine one” and the assessment as to which
category it fell into was fact sensitive

In Kilraine Langstaff
J goes further and says that he

“would caution some care in the application of the principle
arising out of Cavendish” .

Whilst agreeing with the result in Cavendish itself and also concluding that the ET in Kilraine had been correct because the
purported disclosure did “not sensibly
convey any information at all” Langstaff J said that the dichotomy between “information”
and “allegation” was not one that was made by the statute itself. He continued

“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. The decision
is not decided by whether a given phrase or paragraph is one or rather the
other, but is to be determined in the light of the statute itself. The
question is simply whether it is a disclosure of information. If it is
also an allegation, that is nothing to the point.”

This is at once robust and clear. It is, with respect,
doubtful that the use of “information” and “allegation” in S43K and the
discrimination statutes justified the conclusion in Cavendish that if something amounted an “allegation” it could not also
constitute a disclosure of “information” .
Indeed s. 43K can surely be read as saying that the making of an
allegation can amount to the giving
of information: it is just that the information given may also contain an
allegation within it. As HHJ Eady QC said in Anastasiou it all depends on the facts. Indeed we could (and
should) go further and conclude that, depending again on the circumstances, an allegation that does not on face of it directly refer to or contain (specific)
facts may nevertheless draw the attention of the recipient to facts by direct
or indirect reference. In Kilraine itself
there might have been scope for such an argument: the passage in the worker’s
letter which she said

Since the end of last term, there
have been numerous incidents of inappropriate behaviour towards me, including
repeated sidelining, and all of which I have documented

which (as remarked above) Langstaff J
said did “not sensibly convey any information at all” surely did make direct
reference to previous occasions when the worker had “documented” those
incidents. In any event the worker had continued
by saying that

As an example, I have brought to your attention the
inappropriate behaviour of Liz Rayment-Pickard, and despite your undertaking
have received no feedback.”

It is to be noted that section 43L (3) of ERA provides that “any reference to the
disclosure of information shall have effect, in relation to any case where the
person receiving the information is already aware of it, as a reference to bringing
the information to his attention. This clarification is unsurprising. The
recipient of the disclosure may well already know about the relevant failure
but wants or needs to be able to pretend otherwise. A whistleblower may well
have to repeat the same message several times to be listened to. It surely
cannot be right that he or she has to spell out every detail each time in order
to be protected from the consequences when the recipient finally retaliates. Of
course an alternative solution in such cases would be for the worker to plead
the earlier disclosures as part of a series amounting a single composite
Norbrook Laboratories (GB) Limited v Shaw is a useful case illustrating that approach.

A desire to try and found some boundaries to
the scope of whistleblowing protection was understandable. However it is
respectfully submitted that Cavendish introduced an approach which was
capable of diverting the attention of ETs away from substance and towards form
and in doing so depriving some workers of protection for what ought to have
been regarded as disclosures of information. Kilraine puts the ship back
on course. More generally claimants need
to be alive to the risks of confining their case as to what, when and how they
made their disclosures to narrowly. It will often be important to rely on the
background as well as the more immediate context for the worker’s statement in
order to make good the contention that the worker made a “disclosure of information”.

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