Whistleblowing – Information or Allegation? Guideline Ruling

August 6, 2018

Workers who disclose information in the public interest are entitled to protection as whistle-blowers – but what exactly qualifies as ‘information’ within the meaning of the Employment Rights Act 1996? The Court of Appeal has considered that issue in a guideline case.

What happened?

A local education authority employee claimed to have suffered detrimental treatment as a result of making protected disclosures. She argued that a letter she had written to a superior, complaining that she had not been invited to attend a particular meeting, amounted to such a disclosure.

However, in dismissing her challenger to a ruling of the Employment Appeal Tribunal (EAT) to like effect, the Court found that, although the letter contained the allegation of mistreatment, it did not include the minimum factual content required for it to be described as information.

An email that the woman had sent to a human resources officer, in which she said she had reported a safeguarding issue to a colleague but had not received a satisfactory response, did provide information. However, it could not found a whistleblowing claim in that it did not tend to show that a person had failed, was failing, or was likely to fail, to comply with a legal obligation.

The employee previously had her unfair dismissal claim upheld by an Employment Tribunal (ET) on the basis of a failure to consult with her. However, she was awarded no compensation after the ET found that she would have been made redundant in any event. Her claim that she had been automatically unfairly dismissed due to whistleblowing activities failed.

Lucy Watson, Employment Specialist, has had sight of the case and made the following comments, “The Court of Appeal have considered what qualifies as “information” within the meaning of the Employment Rights Act 1996 in regards to workers who disclose information in the public interest.” She further adds that “In their findings they have determined that an allegation of mistreatment did not include the minimum factual content required to be deemed information. This case is useful guidance to assist employers in whistleblowing situations”.

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Kilraine v London Borough of Wandsworth. Case Number: A2/2016/0718