Protected disclosures and complaints of defamation


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The Employment Appeal Tribunal (EAT) has held in Ibrahim v HCA International Ltd that a hospital worker's complaint to HR that he was being defamed by rumours that he had breached patient confidentiality was capable of amounting to a qualifying disclosure under the whistleblowing provisions of the Employment Rights Act 1996.

Mr Ibrahim worked as an interpreter in a hospital. On 15 March 2016 he met a senior manager, Ms Pope, and asked her to investigate rumours which were circulating among patients and their families that he was responsible for breaches of patient confidentiality. He followed this up with an email saying that he needed to "clear his name". Ms Pope referred the complaint to the HR team and it was investigated and rejected. When he was later dismissed he brought a claim for detriment for having made a protected disclosure.

At first instance the claim was dismissed, and the tribunal found that a complaint that false rumours have been spread is not a disclosure of information showing a breach of a legal obligation, and also that the complaint was not in the public interest. On appeal the EAT held that a legal obligation had been breached, as it could include tortious duties such as those contained in the Defamation Act 2013. However, the tribunal had been correct to find that Mr Ibrahim did not have a subjective belief in the public interest element of his disclosure. In order to satisfy this test a worker will have to believe that the disclosure they are making is in the public interest and their belief will have to be a reasonable one.

Take note: Ibrahim shows that where there is no public interest to the employee's disclosures there will be no protection under the whistleblowing legislation. There is no definition of "public interest" in the legislation, but the Court of Appeal provided useful guidance in Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed on the way to approach the issue which was followed in this case.

This article is taken from HR Law - February 2019.         

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