Complaints lacked sufficient facts to be whistleblowing disclosures
A recent case from the Court of Appeal is a cautionary tale for any employees thinking of trying to retrospectively dress up complaints as whistleblowing disclosures. The decision shows that a statement is likely to fail to be considered a disclosure that qualifies for protection under the whistleblowing legislation unless it contains sufficient facts and identifies relevant failings.
Background
The claimant in the case, Ms Kilraine, worked at the London Borough of Wandsworth as an advisor teacher. Between 2005 and 2010 she made a number of complaints. She subsequently alleged that her statements were disclosures that qualified for protection under the whistleblowing provisions of the Employment Rights Act 1996. The employment tribunal disagreed and struck out three of Ms Kilraine’s four allegations of protected disclosures.
Appeal
By the time the matter came before the Court of Appeal, the focus was on two disclosures made in 2009 and 2010. Wandsworth disputed that either statement disclosed any information. It said she had merely made allegations.
The Court of Appeal found that the concept of “information” envisaged by the whistleblowing legislation is capable of including “allegations”, and that there should not be a strict dichotomy between the two terms. The Court noted that despite this finding not every statement involving an allegation would constitute information. The statement needed to have sufficient factual content and specificity to be capable of meeting the legislative test of a qualifying disclosure.
- that a criminal offence has been committed, is being committed or is likely to be committed,
- that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
- that a miscarriage of justice has occurred, is occurring or is likely to occur,
- that the health or safety of any individual has been, is being or is likely to be endangered,
- that the environment has been, is being or is likely to be damaged, or
- that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.
Ms Kilraine’s appeal failed when the Court decided that neither the 2009 nor the 2010 disclosure contained sufficient factual content to amount to a qualifying disclosure. The Court further found that Ms Kilraine could not prove that she had any one of the six whistleblowing failings listed above in mind when she made her statements.
CASE Karen Kilraine v London Borough of Wandsworth, Court of Appeal, 21 June 2018
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