What is a qualifying disclosure?

In Kilraine v London Borough of Wandsworth, the Court of Appeal had to consider whether or not the employee had made a “qualifying disclosure” entitling her to protection under the whistleblowing legislation. At issue was whether the “allegations” made by the employee disclosed “information”. The Court of Appeal dismissed the employee’s appeal and agreed with the Employment Tribunal and EAT that the employee’s disclosures were “allegations” rather than disclosures of “information” and consequently, were not “qualifying disclosures”. The decision provides helpful guidance on the relationship between “allegations” and “information”.

Legislation

Under the Public Interest Disclosure Act 1998 (PIDA), a worker will only be protected from suffering a detriment or from being dismissed if their disclosure is both a “qualifying” and a “protected” disclosure. There are three elements to a qualifying disclosure, namely:

• The worker must make a disclosure of information.
• The information must relate to one of the six types of “relevant failure” (see below).
• Since 25 June 2013, the worker must have a reasonable belief that disclosure is in the public interest.

In making a qualifying disclosure, the worker must have a reasonable belief that one or more of the six specified types of relevant failure has taken place, is taking place or is likely to take place, (section 43B(1) Employment Rights Act 1996 (ERA)). The six categories are:

• Criminal offences.
• Reach of any legal obligation.
• Miscarriages of justice.
• Danger to the health and safety of any individual.
• Damage to the environment.
• The deliberate concealing of information about any of the above.

A disclosure can be made orally or in writing and can take the form of an e-mail, letter, telephone call or other conversation. However, the disclosure must be more than merely a communication and “information” must be more than merely an allegation or statement of position.

A qualifying disclosure will also need to be “protected”. This means that the disclosure must be made to certain categories of people (for instance, the employer or a Prescribed Person such as the Health and Safety Executive) and different conditions apply to the disclosure depending on the category of person the disclosure is made to.

Background

Ms Kilraine worked as an Education Achievement Project Manager and started employment in September 2003. Workplace relations with other members of staff and managers were strained and during her employment Ms Kilraine made a number of complaints about her colleagues. She also made four alleged protected disclosures. The first was made on 21 July 2005, the second on 25 January 2008, the third on 10 December 2009 and the fourth on 21 June 2010.

Not long after the fourth disclosure, Ms Kilraine was put on garden leave and on 1 September 2010, she was formally suspended pending an investigation that she had made unfounded allegations against colleagues. Subsequently, because of major funding issues, Ms Kilraine was dismissed for redundancy on 30 September 2011.

Ms Kilraine brought Employment Tribunal proceedings saying that she had been unfairly dismissed, that her dismissal was automatically unfair and she had suffered a detriment for making the protected disclosures. The Employment Tribunal held that this was a genuine redundancy dismissal rather than a dismissal for making a protected disclosure but the dismissal was unfair because of a lack of consultation. However, it held that Ms Kilraine should not receive any compensation because even if there had been consultation she would have been dismissed anyway. The Employment Tribunal dismissed the other claims relating to the four protected disclosures for different reasons. In relation to the third and fourth disclosures, it held that these were simply “allegations” rather than disclosures of “information” that tended to show a breach falling within section 43(B)1 of ERA.

• The third disclosure was in a letter of 10 December 2009 from Ms Kilraine to the Assistant Director of Children’s Services stating that Wandsworth was failing in its legal obligations towards her in respect of bullying and harassment and, in particular “numerous incidents of inappropriate behaviour” towards her.
• The fourth disclosure was in an e-mail of 21 June 2010 from Ms Kilraine to HR that at a meeting on 16 June 2010, Ms Kilraine’s line manager had failed to support her when she had raised a safeguarding issue about a particular school.

In reaching its decision about the third and fourth disclosures, the Employment Tribunal took into account the principle in Cavendish Munro Professional Risks Management Ltd v Geduld (EAT 2009), that a disclosure must involve “information”, and not simply voice a concern or raise an allegation. Further, the ordinary meaning of giving “information” is conveying facts. An allegation, for example, might be that the employer is not complying with health and safety obligations. Whereas saying that a piece of carpet on the stairs is not stuck down and therefore a trip hazard would be a communication of information.

Ms Kilraine appealed to the EAT in relation to the findings about the third and fourth disclosures. Regarding the third disclosure, the EAT held that the letter was an “allegation” and it did not provide “information” tending to show that any of the six specified types of relevant failure had taken place and the word “inappropriate” was far too vague. As for the fourth disclosure, there was nothing to indicate that Wandsworth had failed to put in place the necessary procedures or was in breach of its statutory duties or any legal obligation to which it was subject.

The EAT upheld the Employment Tribunal decision but said that the principle in Cavendish Munro should be applied with care.  “The dichotomy between information and allegation is not one that is made by the statute itself.” Employment Tribunals should not simply ask if it was one or the other “when reality and experience suggest that very often information and allegation are intertwined.”

Ms Kilraine appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal said that Cavendish Munro was expressed in a way that has given rise to confusion with the proposition that a statement was either an “allegation” (falling outside section 43(B) 1 of ERA) or “information” (falling within it). In this case however, the EAT had taken the correct approach and had not treated the concepts of “allegation” and “information” as mutually exclusive.

The Court of Appeal went on to say that sometimes a statement which can be categorised as an “allegation” will also contain “information” and amount to a qualifying disclosure but it depends on whether it falls within the language of section 43(B) 1 of ERA. In order for a statement to be a qualifying disclosure it has to have sufficient factual content and specificity that it is capable of tending to show one or more of the six types of malpractice. That will be judged in the light of all the facts of the case and the particular context in which it is made.

In relation to the third disclosure, Ms Kilraine did not identify any relevant context for the statement which might inform or supplement its meaning nor did she specify any part of that context which was said to supply the relevant minimum factual content which could satisfy section 43B(1) of ERA. Although the fourth disclosure had sufficient factual content to potentially qualify as a disclosure of “information”, it did not tend to show that a person has failed, is failing or is likely to fail to comply with any legal obligation. Although one individual at Wandsworth might have been unsupportive on one occasion in relation to a safeguarding issue that did not mean that Wandsworth itself failed to make the appropriate safeguarding arrangements.

Ms Kilraine’s appeal was dismissed.

Comment

Interestingly, the Court of Appeal made the point that if the meaning of the individual’s statement is to be derived from its context this should be explained in the claim form and in the individual’s evidence. This would then give the employer a fair opportunity to dispute the context relied on.

Identifying whether a “qualifying” and “protected” disclosure has been made can be tricky because of the numerous conditions that apply. A clear and comprehensive whistleblowing policy will help both parties as staff will know the circumstances when a disclosure should be made and they, as well as employers and managers will know what process to follow. Training on the policy is likely to be helpful too. Don’t forget that there is no qualifying period of service to bring a whistleblowing claim and no cap on the compensation that can be awarded. Failing to manage whistleblowing allegations properly can result in organisations dealing with costly and lengthy litigation as well as facing reputational damage.