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Can an allegation amount to a disclosure of information in whistleblowing claims?

Background

The Claimant issued a whistleblowing claim against her employer (“Wandsworth”) on the basis that she had made protected disclosures during her employment and suffered detriment and dismissal as a result.

The Claimant intended to rely on four disclosures (we will cover the two that were subject of the appeal):

  • In a letter to the Assistant Director of Children’s Services at Wandsworth she stated that Wandsworth was failing in its legal obligations towards her in respect of bullying and harassment and stated that there had been “numerous incidents of inappropriate behaviour”.
  • In an email to a Human Resources Officer, she said that her line manager had failed to support her when she raised a safeguarding issue.

The Law

To establish a whistleblowing claim, a worker must make a qualifying disclosure.

A qualifying disclosure is a disclosure of information which, in the reasonable belief of the worker making it, tends to show that one or more of the six specified types of malpractice has taken place, is taking place or is likely to take place.

Case law has established that a protected disclosure must involve information and must not simply voice a concern or raise an allegation.

Decision

The Employment Tribunal held that the Claimant had raised allegations but they did not amount to disclosure of information.

The Employment Appeal Tribunal dismissed the Claimant’s appeal and she appealed again to the Court of Appeal.

When considering the alleged disclosures, the Court of Appeal decided that they did not amount to qualifying disclosures for the purposes of the whistleblowing legislation. However, it held that there should not be a rigid dichotomy between “information” and “allegations”. A statement that could be characterised as an allegation could also amount to a disclosure of information and be a qualifying disclosure. It will depend on whether the allegation had sufficient factual content and was sufficiently specific.

Comment

Whistleblowing claims can be extremely complex. Whether an allegation amounts to a disclosure will depend on the facts and will need to be assessed in light of the context in which it was made.

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