Kilraine v London Borough of Wandsworth

Hello, in the week England won a historic penalty shoot-out at a World Cup and now face Sweden in the quarterfinals, it is worth reminding every one of our employment law guide to World Cup fever. We are expecting cases to rise the further England progress. If football is coming home, a lot of people might not be coming to work!

After a week’s break for our monthly employment law newsletter, we have another case law update for you. Our most recent case law update had two cases on trade union recognition and activities, whilst last week’s newsletter had features on upskirting, zero-hours contracts, race & gender pay gaps and vegan whistleblowers.

Whistleblowing is also the topic of today’s case law update. Section 47B of the Employment Rights Act 1996 states that an employee has the right not to suffer any detriment as a result of making a protected disclosure (blowing the whistle). Equally, under Section 103, any dismissal due to making protected disclosures will be automatically unfair and is exempt from the two years’ service rule for normal unfair dismissal rights.

But what is a protected disclosure? Section 43B defines protected disclosures as any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest. The disclosure should also show that a person is failing to perform or uphold a legal duty.

This usually tends to relate to criminal, legal, environmental and health and safety matters but last week’s vegan whistleblowing news had examples of other disclosures made in the public interest based on previous case law. Previous case law has also held that allegations and assertions cannot amount to disclosures, factual information must be disclosed.

The question this week is:

Can an allegation amount to a public interest disclosure?

Ms Kilraine, the Claimant, was an Educational Project Manager, in the education department of the London Borough of Wandsworth, the Respondent. The Claimant had a turbulent working relationship with some of her colleagues and made several complaints about their work during the course of her employment. Four of these complaints, she alleged, amounted to protected disclosures.

The alleged protected disclosures were:

  1. A complaint that Ofsted inspectors discriminated against her because she was Irish and Ofsted inspectors suspected her to be a Catholic.
  2. Reporting a child in one of the Respondent’s schools for masturbating in class.
  3. A complaint about the Respondent failing to address bullying and harassment in the workplace.
  4. A complaint that the Claimant’s manager had not supported her when she raised a safeguarding complaint about one of the Respondent’s schools.

The dates of these disclosures range from 2005 to 2010. Following the Claimant’s fourth disclosure, she was suspended for making unfounded allegations against colleagues during the course of her employment. The Claimant was ultimately dismissed and initiated ET proceedings for automatic unfair dismissal due to making protected disclosures.

The ET held that alleged disclosures 1, 3 & 4 were allegations and did not amount to protected disclosures and 2 was made too long ago to have had any impact on the dismissal. The ET added that 4 might have been a disclosure and an allegation but was not a protected disclosure because it was not in public interest and didn’t show a failure to fulfil a legal duty.

The Claimant appealed and the EAT rejected the appeal. It held that the ET was right to make the findings it did on the alleged disclosures. The Claimant appealed to the Court of Appeal, only appealing the decisions on the third and fourth disclosures.

The CoA rejected the appeal. It held that that whilst the fourth alleged disclosure was an allegation, it also included information that could amount to a disclosure. However, the information disclosed was not in the public interest and did not show that a legal duty had been breached.

The takeaway point:

Yes, an allegation can amount to a disclosure if the allegation also disclosed information and that information showed that a legal duty was not being fulfilled. The importance of this case is that previously allegation could not be disclosures, now, in the right circumstances, they can be.

In this case, the CoA also stated that the context of the allegation is also important. Contextualising an allegation with the physical environment and body language of the whistleblower can form a protected disclosure. The CoA used the example of a nurse taking a manager down a hospital ward and alleging, “you’ve not fulfilled health and safety obligations,” whilst pointing at sharps on the ward floor.

Overall employers will need to adopt a much more subjective approach to what constitutes a disclosure and ensure that any potential whistleblower isn’t treated unfavourably.