Whistleblowing and factual content of disclosures


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The Court of Appeal has held in Kilraine v London Borough of Wandsworth that an employee who made two complaints to her employer relating to bullying and harassment, inappropriate behaviour and a lack of managerial support over a safeguarding issue did not attract whistleblowing protection. In doing so it agreed with both the tribunal and the Employment Appeal Tribunal (EAT).

There were two disclosures in question here. The first was a letter from the claimant, an Education Achievement Project Manager, to the Assistant Director of Children's Services which stated that Wandsworth was failing in its legal obligations towards her in respect of bullying and harassment and, in particular "numerous incidents of inappropriate behaviour towards me". The second was an email to the Human Resources Officer at the education directorate from the claimant stating that the claimant's line manager had failed to support her when she had raised a safeguarding issue.

In coming to its conclusion the Court of Appeal referred to the decision in Cavendish Munro Professional Risks Management Ltd v Geduld where the EAT had held that, to be protected, a disclosure must involve information and not simply voice a concern or raise an allegation. The Court held that there is no rigid dichotomy between information and allegations and the question to focus on is simply whether there is a disclosure of information. In practice information and allegations are often intertwined and the fact that the information is also an allegation is not relevant.

In this instance the letter containing allegations of "inappropriate behaviour" did not disclose any information which tended to show a breach of a legal obligation or any of the other relevant failures listed in section 43B(1)(a)-(f) ERA. To say that an individual officer of the Council might have been unsupportive on one particular occasion in responding in relation to a safeguarding issue does not indicate a failure by the Council to make appropriate general arrangements in accordance with safeguarding legislation.

Take note: Whether an allegation also amounts to a disclosure of information will depend on the facts including the context of any disclosure. The Court of Appeal used the example given in Cavendish to demonstrate this. If a worker brought their manager to a hospital ward, and showed them needles left lying around and said "You are not complying with Health and Safety requirements", the statement would derive from the context in which it was made and would therefore constitute a qualifying disclosure. Without the context it would be unlikely to qualify for whistleblowing protection.

This article is taken from HR Law - July 2018.

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