The Court of Appeal has considered the circumstances when allegations made by an employee may amount to a disclosure for the purposes of a whistleblowing claim.

Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436

Facts

The employee, Ms Kilraine, brought a tribunal claim on the basis that she had made protected disclosures during her employment and had been subjected to detriment and unfairly dismissed as a result of these disclosures. The employment tribunal rejected her claim on the basis that Ms Kilmore had raised only allegations against her employer (specifically of bullying and harassment and of her manager failing to support her when raising a safeguarding issue). These allegations were not disclosures of information conveying facts as required under the whistleblowing legislation.

The Employment Appeal Tribunal rejected Ms Kilmore’s appeal, agreeing that the allegations raised were not qualifying disclosures

Court of Appeal decision

The Court of Appeal has likewise dismissed the employee’s appeal. There is no dichotomy between what is ‘information’ and what is purely an ‘allegation’; in certain circumstances an allegation will include information that amounts to a qualifying disclosure, but that is not what had occurred in this case. For a statement to amount to a disclosure, it must have sufficient factual content and be sufficiently specific.

Consequences

This decision is a useful one for employers, in that it helps to clarify that allegations will not amount to qualifying disclosures unless the content and the context of those allegations can be properly interpreted as the disclosure of information.

In its judgment, the Court provided an example to illustrate when an allegation would potentially be protected under whistleblowing legislation. A statement “You are not complying with Health and Safety requirements” would be so general and devoid of specific factual content that it could not constitute a qualifying disclosure; it would be an allegation, not ‘information’. However, if a worker brought their manager down to a particular ward in the hospital and gestured to sharps left lying around and made the same statement, taken in combination with the context it would be protected by the legislation.

It will therefore depend on the facts in each case, but the Court has confirmed that a claimant must make it clear and provide sufficient details if their claim is reliant on the context of a statement rather than purely the content. The decision will be a useful authority to rely on in cases where a whistleblowing claim has been poorly pleaded.