In Kilraine v London Borough of Wandsworth the EAT has confirmed that to be protected by the whistleblowing provisions in the Employment Rights Act 1996 it is not sufficient for an employee to merely make allegations but there must also be a disclosure of information. It reminded tribunals that the two are not mutually exclusive and that the disclosure may also include allegations.
The distinction between allegations (which do not protect employees) and disclosures of information (which do protect employees) is a complex one which has been explored in this case.
The case of Cavendish Munro Professional Risks Management Ltd v Geduld initially set the principle that to be protected a disclosure must involve information (which convey facts), and not simply voice a concern or raise an allegation. A hypothetical was provided regarding communicating information about the state of a hospital. Communicating “information” and therefore providing protection would be "the wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around". In contrast, the statement that "you are not complying with Health and Safety requirements" would be deemed a vague allegation, not information and therefore not protected.
In the current case, Ms Kilraine was employed by London Borough of Wandsworth and argued that she had made protected disclosures during her employment and suffered both detriment and dismissal as a result. One of the statements she wished to rely upon was:
“I think that it is also important to remind you, that what has been achieved over the years has been despite bullying and harassment that was tolerated, and at times, not least at present, encouraged over that time by Stephen Pain, Liz Rayment-Pickard, yourself and others, and also despite successive and repeated failure to honour LA and individual agreements to extend my role and to provide career development. Since the end of last term, there have been numerous incidents of inappropriate behaviour towards me, including repeated sidelining, and all of which I have documented. As an example, I have brought to your attention the inappropriate behaviour of Liz Rayment-Pickard, and despite your undertaking have received no feedback.”
The EAT stated that the letter above was not information. It found that if one took away the word “inappropriate” , it said nothing that was at all specific. It does not sensibly convey any information at all. The EAT went further by stating that there was nothing that alleged a criminal offence, a failure to comply with legal obligations or any of the other matters covered by the whistleblowing legislation. The email was found to be simply far too vague and for employees to be protected they must show or tend to show something that comes within the relevant section relied upon.
It was therefore found that the employee had made allegations and not disclosures of information so she was not protected and her claim failed. It was however found as a separate point that suspensions can amount to detriments for those who have made the appropriate disclosures of information.
Whistleblowing claims are frequently bought by employees who have been dismissed with less than two years service but as this case illustrates, it is important to ensure that the complaints made are in fact deemed to be protected disclosures of information and not merely allegations, to obtain protection.