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Complaint of Defamation gives rise to Whistleblowing

The Employment Appeal Tribunal in the case of Ibrahim v HCA International Ltd has held that a complaint of defamation can form the basis of a whistleblowing complaint.

Background

The Claimant worked for HCA International Ltd (“the Company”) as an interpreter at a hospital. He raised a grievance alleging that colleagues were spreading false rumours that he had breached confidentiality. He said that he wanted to “clear his name”. However, the grievance was not upheld and he was subsequently dismissed.

The Claimant brought a whistleblowing claim, alleging that he had suffered a detriment for making a protected disclosure.

The Law

For a whistleblowing claim to be successful a Claimant must demonstrate:

  1. That they made a qualifying disclosure of information. The Claimant must have a reasonable belief that the information disclosed tends to show that one of the six specified offences or failures have occurred (i.e. a criminal offence, damage to the environment etc.). In this case, the Claimant alleged that his complaint that false rumours were being spread about him tended to show a breach of a legal obligation.
  2. That the disclosure was in the public interest.
  3. That the disclosure was also a protected disclosure. This is demonstrated by making the disclosure to a relevant authority as set out in the legislation. An employer can be a relevant authority.

Decision

The Employment Tribunal dismissed the claim. It held that the complaint made by the Claimant to his employer that false rumours had been spread about him did not amount to a qualifying disclosure as it was not a disclosure of information that tended to show a breach of a legal obligation.

The Employment Appeal Tribunal disagreed. It held that the complaint made by the Claimant to his employer about the false rumours was clearly an allegation of defamation and therefore a breach of a legal obligation.

However, the Claimant’s appeal ultimately failed as the EAT decided that the disclosure was made in relation to his personal situation and was not raised in the public interest.

Comment

This case demonstrates that even though the Claimant did not specifically refer to defamation in his grievance, he passed the first limb of the test as the tribunal was willing to interpret “breach of legal obligations” widely to include tortious claims.

 

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