An Employment Appeal Tribunal has upheld an Employment Tribunal's decision that an employee suffered whistleblowing detriment following his allegation that his supervisor had been taking a patient's food. The Tribunal had not erred in its consideration of whether the employee had made a qualifying disclosure, specifically in its approach to considering whether the employee believed that the disclosure tended to show a breach of a legal obligation and that it was made in the public interest.

The Claimant, a health care assistant for a company that provided hospitals with specialist treatment programmes for vulnerable patients, had complained to management that his supervisor had taken food from a patient. He believed that this breached the Company's policies which prohibited employees from taking gifts from patients and stressed the importance of maintaining professional boundaries and relationships. He made it clear that he thought this could be a disciplinary matter and may amount to a safeguarding issue.

The EAT upheld the Tribunal's findings that the disclosure was a qualifying disclosure. It was clear from the evidence that he believed that his supervisor's actions were more than morally wrong or contrary to mere guidance. His evidence was that the conduct involved a breach of company policy and could lead to disciplinary action. He had also made it clear that he thought there may be a safeguarding issue. The EAT considered that this was sufficient evidence to establish a belief that the information tended to show a breach of a legal obligation. There was no need for him to use the precise wording of the legislation - that would "confuse the substance with the form and … impose a too high a requirement of the worker". 

The EAT also rejected the employer's argument that the Tribunal had substituted its own belief that the disclosure was in the public interest without considering whether the Claimant himself had that belief. The EAT noted that the question of whether a worker held a relevant belief is ultimately a matter of inference for the Tribunal to determine. It was clear from the Tribunal's decision that it had found that the Claimant subjectively believed that the disclosure was in the public interest, and the evidence supported that conclusion.

Comment

This decision is unsurprising and follows previous decisions (Babula v Waltham Forest College, Chesterton Global Ltd v Nurmohamed and others). However, it is a useful reminder that there is no need for a worker to expressly say that there has been a breach of a legal obligation for there to be a qualifying disclosure, nor for a disclosure to actually be in the public interest but rather that the worker reasonably has to believe that it is. It is also a reminder that an allegation that may amount to a breach of employment contract or company policy, which has a public policy element, is likely to amount to a qualifying disclosure.

Ogunlami v Elysium Healthcare No 2 Ltd, Employment Appeal Tribunal