Understanding Whistleblowing

Posted Monday 4th February 2019

In order to bring a whistleblowing claim, an employee or worker must have disclosed information that they reasonably believe to be ‘in the public interest’ to an appropriate person. The worker must reasonably believe that the disclosure tends to show past, present or likely future wrongdoing (usually some kind of legal obligation).

In the public interest?

Employers would be forgiven for thinking that the ‘public interest’ test means a disclosure must relate to the wider public rather than just the individual or employees in the employer organisation.

This question was explored by the Court of Appeal in the case of Chesterton where the Court considered:-

  • where there is an alleged wrongdoing, how many people need to be affected by it
  • whether those affected need to be outside of the organisation

The Court of Appeal found that 100 employees were affected and this constituted a sufficient number to satisfy the public interest test.

The Court reached this conclusion having considered the alternate outcome, that if there were multiple individual breaches of contracts attributed to the same circumstances, ‘it would be a chilling effect if that could never, by itself, convert a personal interest into a public interest.’

This case shows that whistleblowing protection can apply where an employee complains about internal issues which do not on their face effect the wider public.

Is an allegation enough?

In the case of Cavendish Munro Professional Risks Management Ltd v Geduld, the EAT noted that the whistleblowing legislation recognises a distinction between ‘information’ and an ‘allegation’.  Just making an allegation without giving information will not usually be enough.  The ordinary meaning of information is conveying facts and in this case the court held Mr Geduld had simply set out his position rather than disclosed information and as such the disclosure did not qualify for protection. This case illustrates the importance of disclosing information in a way that conveys facts, as anything less will not be adequate in order to qualify for protection.

A mixture of allegation and conveying facts about it

In the case of Kilraine v London Borough of Wandsworth the Court of Appeal stated that no rigid distinction should be drawn between making an allegation and giving information about it as there can often be a combination of both. However, the Court did stress that the disclosure needs to have sufficient specificity and factual context to show the wrongdoing alleged.

A protected disclosure must not be vague or ambiguous otherwise it will not qualify as a protected disclosure.

This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.

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