In this case, the EAT considered whether complaints which had been made contained information, and could therefore be protected, or if they were merely allegations.
Ms Kilraine claimed that she had made protected disclosures during her employment, and that she had suffered detriment and been dismissed because of these disclosures. The employment tribunal dismissed her claim, and she appealed. This alert considers the parts of her appeal that related to whether or not she had disclosed information which is a requirement for a successful whistleblowing claim.
Ms Kilraine had written in a letter that "since the end of last term, there have been numerous incidents of inappropriate behaviour towards me, including repeated sidelining, all of which I have documented". The EAT said that it would be difficult to bring this within the scope of the protected disclosure provisions, given that it said nothing specific, and did not sensibly convey any information at all. Accordingly, it was not a protected disclosure. The EAT went on to say that, even if the statement did include information, the term "inappropriate" is too vague to indicate clearly a criminal offence or a failure to comply with a legal obligation, or any of the other matters listed as wrongdoings in the whistleblowing legislation. Accordingly, this statement was not protected.
Ms Kilraine had also claimed that a statement in an email to an HR officer, complaining that her line manager had failed to support her when she had raised a safeguarding issue, was protected. The EAT held that the email did seem to make an allegation, but also gave information about what had happened at the meeting. However, even if it was a disclosure of information, the tribunal had held that Ms Kilraine had not shown that her line manager's behaviour was in breach of any legal duty or that she reasonably believed that there was such a duty. On this basis the EAT concluded that the tribunal was entitled to reject the claim based on this disclosure.
The judge warned that employment tribunals should take care when applying the principle in Cavendish, a previous case in which the EAT drew as distinction between an "allegation" and "information". Tribunals should ensure they did not fall into the trap of thinking that an alleged disclosure had to be either allegation or information, when reality and experience suggest that it may be both: often information and allegation are intertwined. The decision is simply whether a given phrase or paragraph is a disclosure of information. The fact that it is also an allegation is irrelevant.
What does this mean for employers?
This is a useful reminder that employers who are facing whistleblowing claims should still scrutinise the disclosures the worker claims are protected to see if they do in fact constitute a disclosure of information, or merely allegations.