The EAT has rejected an appeal in Kilraine -v- London Borough of Wandsworth 2016, upholding the decision of the Tribunal but sounding a note of caution as to the correct approach to take in relation to the question of whether a disclosure contains information (and can therefore be a protected disclosure) or is merely an allegation.
The Claimant in this case sought to rely on four allegedly protected disclosures, in respect of which she claimed that she had suffered detriments and an automatically unfair dismissal. The Tribunal held that, for varying reasons, the disclosures were not protected for the purposes of the whistleblowing legislation. In particular, the rule in Cavendish Munro Professional Risks Management Ltd -v- Geduld 2010 was relevant to two of the disclosures. It was held in Cavendish that the essence of a disclosure is the conveying of facts or information, and that a mere allegation without information would not be protected. In this case the Tribunal held that the two disclosures were mere allegations.
On appeal, the EAT held that the Tribunal was entitled to find that the disclosures did not convey any information, and accordingly the appeal was dismissed. However, the EAT sounded a note of caution about the approach to the Cavendish case. The information / allegation distinction does not come from the legislation, and it could be misleading to ask whether a disclosure was one or the other, since information and allegations are often intertwined (for example, a disclosure of information might also include an allegation). The key question for the Tribunal is whether the disclosure in question amounts to a disclosure of information, whatever else it may be.