In order to establish protection under the whistleblowing legislation, employees first have to show that they have made a "qualifying disclosure": the worker must make a disclosure of information and must reasonably believe that the information disclosed tends to show one of six categories of malpractice by the employer. For disclosures on or after 25 June this year, the worker must also reasonably believe that the disclosure is in the public interest, but Millbank Financial Services Ltd v Crawford was a case about a disclosure made before this change.
There is no definition of "information" but case law has established that it must be more than merely an allegation or a statement of position. The disclosure must actually convey facts (albeit that those facts may be already known to the recipient). The benchmark was set in Cavendish Munro Professional Risks Management Ltd v Geduld where the EAT held that a solicitor's letter which set out its client's objections to the way in which his employer had treated him, as well as complaints that he had suffered unfair prejudice as a shareholder, did not amount to a protected disclosure as it was simply a statement of the employee's position.
The claimant in Millbank Financial Services Ltd v Crawford was a financial director employed on a probationary period of six months. Towards the end of that period, a review meeting was held and the claimant was told that her probationary period was being extended and that there were some concerns about some aspects of her performance. A few days later, in preparation for a further meeting to be held the next day, the claimant sent a letter of complaint by email to senior management. After receiving this letter, the employers cancelled the meeting and a week later the employee was dismissed.
The claimant did not have the qualifying service for an ordinary claim of unfair dismissal but brought the proceedings for unfair dismissal on the basis that the reason for her dismissal was the making of protected disclosures – she argued that her letter tended to show failures by the employer to comply with its legal obligations, including extending the probationary period in breach of contract. The employers accepted that it dismissed her on receipt of the letter, because they had become concerned about her attitude, but argued that the letter contained no "information" and therefore did not amount to a protected disclosure.
The EAT upheld the Tribunal's decision that the letter did convey facts. It complained about a lack of communication and consultation during the probationary period and was backed up with various facts and details of an email which had been sent to her. The EAT concluded that the letter went far beyond simply making an allegation or stating a position; on the contrary, it set out the factual basis of her complaint in considerable detail. The EAT commented that conveying facts can include facts about the employer's omissions as well as what had been done.
The case indicates that the threshold for showing that there has been a disclosure of information may be pretty low – the Cavendish case was about a solicitor's letter and may not be of general application. However, the claimant will still need to show that the letter was a protected disclosure in order to succeed with her claim.
There is also a wider issue going forward, given that the law has been changed to include an overriding requirement that the worker must have a reasonable belief that the disclosure is made "in the public interest". This was added explicitly in order to deal with the "loophole" created by previous case law – that a complaint by an employee about a breach of their own contract of employment was sufficient to fall within the whistleblowing protection. It is interesting to speculate on what the result of this case might be under the new law; there is no definition of "public interest" and, depending on the size and nature of the employer's business, it may at the very least be possible to argue that an employee reasonably believes that a disclosure about an individual breach of contract is in the public interest. And in many cases, particularly in the financial sector, the employee may (as in this case) be able to refer to alleged breaches of duties under the Companies Act or financial services conduct rules, which are more likely to be viewed by tribunals as public interest disclosures.
