A recent case has considered the issue of what amounts to a protected disclosure. In Kilraine v. London Borough of Wandsworth [2018], the Court of Appeal guided Employment Tribunals in such cases to focus on determining whether there was a “protected disclosure” and whether the disclosed information, showed or tended to show that one or more of the six specified types of malpractice had taken place or was likely to take place – for example a breach of a legal obligation.

Facts of the case Ms Kilraine was an employee of the London Borough of Wandsworth (LBW) education authority. During her employment she raised four protected disclosures (between 21 July 2005 and 21 June 2010), and as a result faced a disciplinary investigation into unfounded allegations against her colleagues. In 2011, she was dismissed from her employment on the grounds of redundancy.

Subsequently, Ms Kilraine brought a claim against LBW for unfair dismissal and automatic unfair dismissal in the Employment Tribunal (ET).

The ET dismissed Ms Kilraine’s claim for automatic unfair dismissal. It followed the decision in Cavendish Munro Professional Risks Management Ltd v. Geduld [2010], and found that her third and fourth complaints were simply allegations and not a disclosure of information as required by whistleblowing legislation.

Ms Kilraine unsuccessfully appealed to the Employment Appeal Tribunal (EAT), which agreed that neither the third nor the fourth complaint showed a failure to comply with a legal obligation. However, the EAT did cast doubt on Geduld and stated that an allegation and information are often intertwined. The EAT suggested that Tribunals should apply the test set out in s.43B of the Employment Rights Act 1996 – a worker must first show that she made a “disclosure qualifying for protection”. However, even if the alternative approach had been adopted in this case, the EAT found that the disclosure was too vague and did not qualify as a “protected disclosure”.

Ms Kilraine appealed to the Court of Appeal.

Decision

The Court of Appeal agreed with the EAT’s approach to Geduld, and its decision that Ms Kilraine’s disclosures were too vague and did not amount to a disclosure of information or to an allegation that constituted a breach in legal obligation. It concluded that the ET did take a wrong approach but that its end decision was correct.

Conclusion

The case sets out that courts will take a more holistic approach when deciding whether a disclosure satisfies the statutory test. The question courts should consider is ultimately whether the disclosure is specific enough for the worker to be protected under whistleblower legislation. They should consider the content of the statement and the context in which it was made.