Previously the EAT held that to be a protected disclosure, the disclosure must involve information and not simply voice a concern or raise an allegation. In Kilraine -v- London Borough of Wandsworth however, the EAT noted that the legislation does not distinguish between information and an allegation, and the question is one of does it disclose information. In practise these are often intertwined.
The whistleblowing procedures set out in sections 43A to 43L of the Employment Rights Act 1996 protect workers (not just employees) from being subject to a detriment on the ground that they have made a protected disclosure. There is a list of what constitutes a protected disclosure which includes (as is relevant to this case) a failure to comply with a legal obligation. The disclosure also has to be made to the employer ‘or other responsible person’ as defined in the act.
There were four disclosures in total made by Mrs Kilraine, three to the employer. For the purposes of this discussion, we are considering the two disclosures which the tribunal at first instance felt were allegations rather than the provision of information which is required for a protected disclosure. The allegations were contained in a letter of 10 December 2009 to the assistant director of children's services at Wandsworth which stated that Wandsworth was failing in its legal obligations towards Ms Kilraine in respect of bullying and harassment and, in particular, ‘numerous incidents of inappropriate behaviour towards me’. Also in an email of 21 June 2010 to the human resources officer at the education directorate, Ms Kilraine stated that at a meeting on 16 June 2010 her line manager, Liz Rayment-Pickard, had failed to support her when she had raised a safeguarding issue. The tribunal at first instance held that these were allegations rather than ‘information’ and therefore did not meet the definition required for it to be a ‘protected disclosure’.
Although the appeal failed on other grounds, Justice Langstaff sitting alone held that previous ruling in the case of Cavendish Munro where an allegation could not be a protected disclosure unless it also conveyed information should be treated with caution. Justice Lagstaff stated that reality and experience suggested that very often information and allegation are intertwined. The decision is not decided by whether a given phrase or paragraph is one or the other, but is to be determined in the light of the statute itself. The question is simply whether it is a disclosure of information. If it is also an allegation, that is neither here nor there.