This whistleblowing case round up considers two recent decisions which demonstrate the wide protection offered to whistleblowers under the current law.
Decision in brief
The Employment Appeal Tribunal (EAT) has held that complaints about an employee's cramped working conditions could potentially meet the public interest test. The decision further bolsters the recent line of case law demonstrating the low "public interest" threshold that has to be met in whistleblowing claims. In particular, the case law developments show that an alleged breach of the whistleblower's own contract of employment may be sufficient.
The introduction of the Public Interest Disclosure Act 1998 (PIDA) provided specific protection for whistleblowers in the UK for the first time. Broadly speaking, those making a disclosure of information about certain specified types of wrongdoing by their employer were given protection from detriment or dismissal.
However, as whistleblowing related dismissal claims are exempt from the service requirements and caps on compensation that apply to ordinary unfair dismissal claims, concerns arose that the protection was being abused. This particularly arose where the whistleblower claimed that they had been dismissed because they 'blew the whistle' on breaches of their own employment contract. Allowing such claims to be protected by PIDA was thought to have widened its scope beyond what had originally been intended.
For this reason, the government amended the whistleblowing legislation in June 2013 so that whistleblowers would only be protected where they reasonably believed that their disclosure was in the public interest. The idea was to bring whistleblowing protection back within the remits of what was originally intended, in particular so that breaches of the whistleblower's own employment contract would not be covered.
Ms Morgan claimed that she had complained on several occasions that her cramped working conditions were exacerbating her medical conditions. She brought a claim alleging that she had been subject to detriment and constructively dismissed because of these disclosures.
Ms Morgan alleged that, as Mencap was a publically funded charity, the public would be interested to know how it treated its employees and that her disclosures were therefore in the 'public interest'.
Her whistleblowing claims were struck out at a Preliminary Hearing on the basis that they had no reasonable prospects of success. The Judge ruled that the disclosures were not a matter of public interest and Ms Morgan could not reasonably believe that they were. No evidence was heard from Ms Morgan on this point. Ms Morgan appealed.
The EAT found that there is a high threshold before whistleblowing claims can be struck out and it would rarely be appropriate to strike out without hearing the evidence. The EAT held that it was possible that her complaints may meet the public interest test if evidence was heard. The case was remitted back to the Employment Tribunal for consideration.
What does this mean for the public interest test?
The government was clear in June 2013 that the changes were primarily intended to stop disclosures about breaches of an individual's own employment contract being protected under PIDA. However, recent decisions have been eroding this aim.
The Morgan case mirrors a line of recent cases such as Chesterton v Nurmohamed, in which breaches of an individual's employment contract which affected 100 other employees, and Underwood v Wincanton, where alleged breaches of contract affecting a small pool of employees, were both held to fall within the public interest. For more detail, see our previous briefings on Chesterton and on Underwood.
Given these cases, it certainly seems arguable that disclosures relating to breaches of an individual's employment contract can, once again, benefit from whistleblowing protection. It is hoped that the Chesterton case, which has been appealed to the Court of Appeal and is due to be heard in October, will provide some welcome clarification.
The Judge's comment in Morgan, that whistleblowing claims should only rarely be struck out without hearing evidence, is a reminder that employers may incur lengthy hearings and bear hefty legal costs dealing with cases that, on the face of them, appear to have little to do with the public interest.
Decision in brief
The EAT held that the focus should not be on asking whether an alleged disclosure is one of 'information' or 'allegation' to decide whether the whistleblower is protected by PIDA. The correct question is simply whether a purported disclosure is a disclosure of information – it does not matter if it is also an allegation.
The case of Cavendish Munro Professional Risks Management v Geduld established that whistleblowers were only protected if they had made a disclosure of 'information', rather than just making allegations. The example given was that a disclosure of information would include referencing specific breaches of health and safety legislation, whereas an allegation would be simply asserting that there had been (unspecified) breaches of health and safety.
Ms Kilraine disclosed that her employer had failed in its legal obligation to protect her from numerous, unspecified incidents of bullying and harassment. She also disclosed that her employer had failed to support her when she had raised a safeguarding issue. She was consequently suspended for raising unfounded allegations and remained on suspension until she was dismissed on grounds of redundancy.
Her employer alleged that her disclosures were allegations, rather than containing information, and that she was not therefore protected under PIDA. The Employment Tribunal agreed and Ms Kilraine appealed to the EAT.
The EAT held that the distinction made in Cavendish between ‘information’ and ‘allegation’ is not one made by PIDA itself. As a result, the correct question to ask is simply whether a purported disclosure is a disclosure of information – it does not matter if it is also an allegation.
The EAT found that the disclosure regarding bullying was a pure allegation; there was no aspect which provided information. On the safeguarding issue, on the basis that it did contain some information about what had happened, the EAT found that it contained information as well as being an allegation. The EAT warned against treating 'allegations' and 'information' as two distinct concepts when, in reality, disclosures will often include both. The appeal was, however, unsuccessful on separate grounds.
These cases show that whistleblowers still enjoy very wide protection under PIDA. Employers receiving information regarding alleged breaches, even those relating to breaches of individual employment contracts, should bear in mind that such employees may still benefit from additional protection under PIDA.
More information on the law surrounding whistleblowing can be found in the following publications:
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at April 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions.