Can an allegation be a ‘protected disclosure’?

In a recent case regarding whistleblowing and detrimental treatment the Employment Appeal Tribunal have addressed an ongoing question about the disclosure of information verses making an allegation.

The Law

Employees have specific protection from being dismissed or suffering a detriment as a result of making a protected disclosure, known as ‘whistleblowing’.

In order for a disclosure to be protected and therefore become a ‘qualifying disclosure’ it must convey information which, in the reasonable belief of the person making the disclosure, tends to show that one of more of the following has occurred:

• Criminal offences
• Breach of any legal obligation
• Miscarriages of justice
• Danger to the health and safety of any individual
• Damage to the environment
• The deliberate concealing of information about any of the above

As set out in Section 43B of the Employment Rights Act 1996.

Since June 2013 a disclosure will only qualify as a protected disclosure if the person making it believes that it is in the public interest.

The Facts

Ms Kilraine was employed by the London Borough of Wandsworth (the ‘Employer’) as an Education Achievement Project Manager until her employment ceased on the 30^th September 2011 by reason of redundancy.

Ms Kilraine’s alleged that she had made several qualifying disclosures to the Employer as follows:

1) 21 July 2005 to a Mr Wallis, a Director of Altecq Inspections Ltd, to the effect that she had been discriminated against by Ofsted inspectors on the grounds of race and religion;

2) 25 January 2008 relating to a response by a school to her reporting that there was a health and safety issue with respect to a young child openly masturbating in class;

3) 10 December 2009 made to a Mr Johnson, the Assistant Director of Children’s Services, to the effect that the Employer was failing in its legal obligations in respect of bullying and harassment;

4) 21 June 2010 to the Human Resources Officer at the education directorate, a Mr Gaskin, that her line manager, Liz Rayment-Pickard, had not supported her when she, had raised a safeguarding issue in relation to a school.

After raising the final issue Miss Kilraine was suspended pending a disciplinary investigation and she remained suspended until the termination of her employment by reason of redundancy.

Ms Kilraine claimed in the Employment Tribunal that she had been dismissed and subject to detrimental treatment as a result of her disclosures.

The Decision

The Employment Tribunal rejected her claims for various reasons including that some of the acts of detrimental treatment complained of were not claimed within the relevant time limit; were unrelated to the disclosures and in respect of disclosures 3 and 4 were not protected disclosures, as they did not convey information but rather were allegations.

Ms Kilraine appealed and although the Employment Appeal Tribunal agreed with the overall conclusion of the Employment Tribunal they disagreed that a distinction could be drawn between allegations and information, as had been expressed by the Employment Tribunal.

However, despite this point Ms Kilraine’s appeal was unsuccessful.

Points to note

If an employee makes an allegation of detrimental treatment because of whistleblowing it is not sufficient for the employee to rely on a broad statement or general grievance, the disclosure must, in order to obtain protection, meet the definition set out above.

However, I strongly recommend that you take any grievances or disclosures seriously and investigate in accordance with your own procedures.

Action to take

1) Ensure that you have a whistleblowing policy or procedure in your staff handbook.

2) Consider having a dedicated ‘whistleblowing’ officer.

3) Seek advice if an employee alleges detrimental treatment because of a disclosure.

Case Name

Kilraine v London Borough of Wandsworth – Employment Appeal Tribunal