Earlier this month the Employment Appeal Tribunal (EAT) asked tribunals to exercise caution when dealing with a rule that has developed in whistleblowing cases. This rule says that a ‘qualifying disclosure’ cannot simply be an allegation but must be a disclosure of information. It arises from the 2010 case of Cavendish Munro v Geduld where the EAT set out the form of words needed to classify as a qualifying disclosure:
“Further, the ordinary meaning of giving “information” is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating “information” would be “The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around”. Contrasted with that would be a statement that “you are not complying with Health and Safety requirements”. In our view this would be an allegation not information.”
All too often this has come to be loosely interpreted as a rule that an allegation cannot form a protected disclosure. In the recent case of Kilraine v London Borough of Wandsworth, the EAT has said there is no such requirement in statute. So long as information pointing to a statutory wrong by the employer is disclosed, this is sufficient:
“The dichotomy between “information” and “allegation” is not one that is made by the statute itself. It would be a pity if tribunals were too easily seduced into asking whether it was one or the other when reality and experience suggest that very often information and allegation are intertwined. The decision is not decided by whether a given phrase or paragraph is one or rather 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 nothing to the point.”
The guidance to take here is that an employee should “be specific”. For example in this recent case, the EAT held that the words “incidents of inappropriate behaviour towards me” did not convey any information at all. An employer who finds that the statements are “far too vague” will be on safe ground.