The law in relation to Protected Disclosures is complex and evolving. The 2013 amendment which required that the disclosure be made “in the public interest” was designed to make it more difficult for employees to complain about breaches of their own contract. However, that has led to other areas being exploited as fertile grounds for alleging that a protected disclosure has been made.
A protected disclosure is made when there is a disclosure of “any information which in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show that one or more of” a number of prescribed circumstances have happened, are happening or are likely to happen; including the commission of an offence, a failure to comply with a legal obligation, a miscarriage of justice, damage to the environment or a threat to the health and safety of an individual.
The most recent Court of Appeal decision, Kilraine v LB Wandsworth, clarifies an area of confusion.
This claim related to alleged disclosures by a project manager whose relations with her colleagues broke down, who was put on garden leave and invited to a disciplinary hearing shortly after having made the last of four alleged protected disclosures.
For there to be a protected disclosure there must be a “disclosure of information”. It was thought that earlier cases drew a line between “information” and “allegations” and that an allegation did not convey information. In an earlier decision (Cavendish Munro v Geldud), Mr Geldud alleged that he had been dismissed following a protected disclosure made in his solicitor’s letter. Whilst the EAT appeared to distinguish between information and allegations in that case, it noted that the solicitor’s letter “did not disclose any facts” and that the claim therefore failed. This led some to seek to distinguish between allegations which were not protected and disclosures of information which were.
However, the Court of Appeal has made it clear that there is no such dividing line and that an allegation can also disclose facts provided that it is sufficiently detailed.
The Court of Appeal also went on to make it clear that the context in which an allegation is made can also be relevant. In Cavendish Munro, it was suggested that saying “You are not complying with health and safety requirements” would be an allegation only and not disclose facts. However, if it was said in the context of having brought a manager down to the particular environment in which it was alleged the failure was taking place, the statement would derive force from the context in which it was made. Taking the words and the context together, that would be sufficient to be a qualifying disclosure.
Frequently, the issue of protected disclosures arises when an employer is considering taking some form of action against an employee. When an employee has made allegations an employer must consider very carefully whether the allegation that is being made is sufficiently detailed to constitute a disclosure of information, or whether there is a lack of detail, which means that it is not. HR managers, when faced with this dichotomy, will also have to consider the particular context in which an allegation was made to ascertain whether that adds any clarity to the allegation to make it a qualifying disclosure.