Whistleblowing - The Protected Disclosure

The Protected Disclosure

This page explains the conditions for a communication to be considered a qualifying or protected disclosure for the purposes of the whistleblowing provisions of the Employment Rights Act 1996. It discusses whether there has been a disclosure of information, the subject matter of the communication, and the requirements for the whistleblower to have a reasonable belief in the relevant type of wrongdoing and in the public interest of the disclosure. The note goes on to consider the identity of the recipient of the disclosure and the varying conditions that apply in each case to determine whether the qualifying disclosure is also a protected disclosure. Exceptions to the usual rules are also considered. A qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the types of wrongdoing or failure listed in section 43B(1)(a)- (f) of the ERA 1996.

Disclosure

The term "disclosure" is not defined in the legislation but appears to have a wide application. A disclosure of information, whether made in writing or verbally, must convey facts and be in the interest of the worker. In cases like Aspinall v MSI Forge Ltd, the EAT held that handing over a video recording would amount to making a disclosure, but doubted that making the video recording itself amounted to a disclosure.

New information

A disclosure may concern new information or draw attention to a matter of which the worker is already aware. In Cavendish Munro Professional Risks Management Ltd v Geduld UKEAT/0195/09, the EAT held that to be protected a disclosure must involve giving information, not simply voice a concern or raise an allegation. The Court of Appeal rejected the suggestion that the categories of "information" and "allegation" were mutually exclusive, stating that the wording of the legislation should not be glossed to introduce a rigid dichotomy between "information" and "allegations."

“Sufficient factual content and specificity”

Some statements involving an allegation would also constitute information and amount to a qualifying disclosure, depending on whether they had "sufficient factual content and specificity" to be capable of showing a relevant failure. The Court suggested that in bringing a whistleblowing claim in reliance on the disclosure, the worker's claim form would need to set out the meaning of the statement as derived from its context.

Opinion

In cases where communications are described as an expression of opinion, such as Norbrook Laboratories (GB) Ltd v Shaw UKEAT/0150/13, emails sent by a manager communicated information and were capable of amounting to a qualifying disclosure.

The EAT ruled that a tribunal had erred in its assessment of whether a communication conveying an expression of opinion was a disclosure of information. The tribunal had not made the principled error of assuming that just because it conveyed an expression of opinion, it could not also have communicated information sufficient to fulfill the concept of a qualifying disclosure. However, the EAT emphasized that the tribunal had been influenced by features more pertinent to the question of whether Ms McDermott reasonably believed that the information communicated tended to show a relevant wrongdoing. The tribunal still needed to assess the nature of the information embedded in her statement and whether she was disclosing information at the time of the disclosure.

“Information" and "Allegations"

The Court of Appeal acknowledged Kilraine's rejection of the clear distinction between "information" and "allegations" in Simpson v Cantor Fitzgerald Europe. In Simpson, the Court held that several communications together can cumulatively amount to a qualifying disclosure, even though each individual communication is not a qualifying disclosure on its own. This was described as "no more than common sense" by the Court of Appeal in Simpson. It is important for a claimant to be able to clearly identify the disclosure(s) of information upon which they seek to rely, including the date and time, how the information was disclosed, the words used, and what the information disclosed was.

In Cavendish, the EAT held that a letter from the employee's solicitor regarding the employer's attempts to remove him as a director and prejudice his rights as a minority shareholder did not convey "information" nor amounted to a "disclosure". The EAT distinguished Cavendish in later cases, such as Learning Trust and others v Marshall, where all three grievance letters "conveyed information that was linked to and capable of supporting complaints of discrimination" and so they "tended to show" a failure to comply with a legal obligation.

In Millbank Financial Services Ltd v Crawford, a worker whose probationary period was extended wrote a long letter expressing disappointment about how her probation review was carried out. The EAT upheld the tribunal's decision that the letter "conveyed facts" that amounted to information for the statutory test.

Whistleblowing legislation does not protect employees who go beyond making a disclosure to commit misconduct or gross misconduct. Two cases illustrate this principle:

Aspinall v MSI Mech Forge Ltd EAT/891/01, where an employee secretly videoed machinery causing an accident, and Bolton School v Evans [2006] EWCA (Civ) 1653, where a worker hacking into an IT system to prove his point was deemed misconduct. The lesson from these cases is that if evidence falls into a worker's hands, its disclosure may be covered by the whistleblowing legislation. However, workers should exercise caution before gathering evidence themselves, as they may unwittingly step over the line and commit an act of misconduct that is not itself a disclosure and therefore not protected. Employers should also exercise caution, as misconduct does not automatically remove a whistleblower's protection.

In Bilsbrough v Berry Marketing Services Ltd ET/1401692/18, an employment tribunal held that an employee was subjected to a detriment when a significant reason for his suspension was his researching ways to make a protected disclosure. However, the tribunal's finding is problematic in several respects, such as what "considered" means, what is required of a worker to show that they had considered making a protected disclosure, and how to prove that a hypothetical protected disclosure would satisfy the strict procedural requirements.

A Qualifying disclosure

A qualifying disclosure is a disclosure of information that, in the reasonable belief of the worker making it, tends to show one or more of the six specified types of malpractice, wrongdoing, or failure has taken place, is taking place, or is likely to take place. The categories of wrongdoing covered by section 43B(1)(a)-(f) are extremely wide and include criminal offences, breach of any legal obligation, miscarriages of justice, danger to the health and safety of any individual, damage to the environment, and the deliberate concealing of information about any of these.

Past, present, prospective

The wrongdoing can be past, present, prospective, or merely alleged and may concern the conduct of the employer, an employee, or some third party. It does not matter whether it occurs inside or outside the UK, and may consist of a breach of any applicable foreign law. It is not necessary for the person making the disclosure to have stated explicitly that they reasonably believe that their disclosure tends to show one or more of the matters set out in 43B(1)(a)-(e) or, in the case a breach of a legal obligation, to identify which legal obligation is asserted to have been breached.

In cases where a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference, such as statute or regulation. An allegation of defamation is capable of amounting to a qualifying disclosure for these purposes, and a complaint about harassment may be considered as a disclosure tending to show a breach of a legal obligation (or, in the alternative, endangerment to the health and safety of any individual).

The tribunal in Dell v McManus & Partners (t/a Weavers Medical) ET/3313326/20 held that a disclosure with sufficient factual content and specificity could show a failure to comply with legal obligations under the Equality Act 2010. In this case, Dr. Dell admitted to using the "N" word in an external university teaching session and sought to argue that her confessing to the use of that term was a qualifying disclosure and was the reason for her dismissal. The tribunal held at a preliminary hearing that it was absurd to suggest that she was dismissed because of her report of having used that term, as opposed to her having actually used that term.

Health & Safety

Dangerous to health and safety can also be a qualifying disclosure under section 43B(1)(d) of the ERA 1996. Complaints about instances of harassment or bullying may constitute a qualifying disclosure under section 43B(1)(d). Environmental damage may fall within more than one category of section 43B(1) of the ERA 1996, including breach of a legal obligation, criminal offence, endangerment to the health and safety of any individual, and concealment of any relevant type of wrongdoing.

Conclusion

For a disclosure to be a qualifying disclosure, the worker must have a reasonable belief that the information disclosed tends to show one of the relevant failures or acts of wrongdoing. A worker does not have to prove that the facts or allegations disclosed are true or capable in law of amounting to one of the categories of wrongdoing listed in the legislation. The decision in Babula overruled the EAT's earlier decision.