Facts

Ms Kilraine was employed by the London Borough of Wandsworth as an Education Achievement Project Manager. She was dismissed on 30 September 2011, allegedly by reason of redundancy. She then brought a whistleblowing claim, arguing that she had suffered detriment and dismissal as a result of protected disclosures made during her employment. She claimed she had made four protected disclosures:

  1. In July 2005, she reported to Mr Wallis, a Director of Altecq Inspections Ltd, that she had been discriminated against by Ofsted inspectors on the grounds of race and religion (being Irish and being supposed by the inspectors to be a Catholic);
  2. In January 2008, she reported to the school that there was a health and safety issue in the classroom;
  3. In December 2009, she reported to Mr Johnson, the Assistant Director of Children’s Services, that the school was failing in its legal obligations in respect of bullying and harassment; and
  4. In June 2010, she reported to the Human Resources Officer at the education directorate that her line manager had not supported her when she raised a safeguarding issue in relation to the school.

After making the final disclosure, Ms Kilraine was suspended pending a disciplinary investigation into whether she had made unfounded allegations against her colleagues. Her suspension remained in place until her dismissal.

Employment Tribunal Decision

The Employment Tribunal dismissed Ms Kilraine’s claims. It held that the first disclosure was not a protected disclosure, the second disclosure was a protected disclosure but it was made out of time and the third and fourth disclosures were not protected disclosures but merely allegations.

Employment Appeal Tribunal Decision

In relation to the first disclosure, counsel for the Claimant argued that the Claimant’s initial representative in the Employment Tribunal had overlooked s43(1)(b) of the ERA 1996, despite it being raised by the Claimant in her original Further and Better Particulars.

The EAT stressed that although it had the discretion to consider new, unargued points on appeal, it did not believe it would be appropriate to do so in situations where the failure to raise a point in the Employment Tribunal stemmed from a representative’s lack of skill or poor tactical decision. In this case, the EAT felt it was clear that the Claimant’s former counsel had made the “conscious and developed decision” to abandon the point, so the issue could not be re-examined on appeal.       

With regards to the second disclosure, the Claimant argued that the Tribunal had erred in arguing that the claim was out of time. A claim for whistleblowing must be brought within three months of the date that the Claimant suffers detriment as a result of making a protected disclosure. In this case, the detriment suffered by Ms Kilraine was her suspension. The Tribunal viewed her suspension as an act of detriment which took place upon commencement of suspension. By contrast, the EAT regarded her suspension as “an act extending over a period”, with detriment being inflicted during the whole of the suspension period. Accordingly, the clock started to run for whistleblowing purposes upon termination of Ms Kilraine’s suspension period and so her claim was not out of time.

Nevertheless, this did not invalidate the decision as a whole as the Employment Tribunal had heard all the facts and came to the conclusion that “so far as the suspension was concerned, it had nothing to do with the protected disclosure.”  

The EAT advised Tribunals to take care when applying the principle arising out ofCavendish Munro v Geduld [2010]. In this case, the Tribunal drew a distinction between making an allegation and disclosing information (which a protected disclosure requires), indicating that a mere allegation will not result in information being disclosed. Since then, the Tribunals have shown a tendency to regard these concepts as mutually exclusive. However, the EAT noted that statute does not distinguish between them and in practice, they are often intertwined. Therefore, Tribunals should focus solely on whether there has been a relevant disclosure of information. The presence of an allegation is irrelevant. 

In relation to the Claimant’s third and fourth disclosures, the EAT held that they failed to convey specific information demonstrating a relevant failure set out by s43B(1) ERA 1996.         

Therefore, none of the Claimant’s disclosures amounted to a protected disclosure for the purposes of whistleblowing.

Practical Implications for Employers

  1. If Claimants fail to address points from their Particulars of Claim or Further and Better Particulars during the initial Tribunal proceedings, Respondents can argue that judicial discretion should not be exercised to consider these points on appeal if the reason they were not addressed was due to Counsel’s strategy or lack of skill. Employers will benefit from this finding.
  2. In situations involving suspension, the employee is regarded as suffering detriment during the whole of their suspension period. Employers should bear in mind that a whistleblowing claim will not be out of time until 3 months have passed from the end of the employee’s suspension.
  3. It is no longer necessary to determine whether a statement is an allegation or a disclosure of information as this was regarded by the EAT as a false dichotomy. Rather, one can ignore the issue of whether the statement contains an allegation and simply focus on whether it conveys specific facts which relate to one of the relevant failures for whistleblowing purposes. If the information provided is vague and fails to provide sufficient relevant detail, employers can argue that the test for disclosure of information has not been satisfied.