Whistleblowing disclosures: allegation of defamation tended to show breach of a legal obligation

The Employment Appeal Tribunal has ruled that an employee who alleged that he was being defamed by rumours that he had breached patient confidentiality had disclosed information tending to show a breach of a legal obligation.  However, he could not bring a whistleblowing claim as the disclosure was not made in the public interest.   

Facts

In Ibrahim v HCA International Ltd, Mr Ibrahim worked as an interpreter at a private hospital. He met with a senior manager to ask her to investigate rumours amongst patients and their families that he had been responsible for breaches of patient confidentiality. He sent an email to the manager after the meeting saying that he needed to “clear his name”. 

Following an investigation by HR, the hospital rejected his complaint and he was later dismissed. He brought a number of tribunal claims, including a claim that he had been treated detrimentally for making a protected disclosure (blowing the whistle).  

In the first instance, he needed to show that he had disclosed information tending to show a breach of legal obligation. The employment tribunal dismissed his claim, ruling that a complaint that false rumours had been spread did not tend to show a breach of a legal obligation. It is also ruled that the disclosure was not made in the public interest, as required  by the legislation.  Instead it was made only with the intention of clearing his name. Mr Ibrahim appealed both rulings to the Employment Appeal Tribunal (EAT).

Decision

The EAT ruled that the tribunal had been wrong to decide that a complaint by an employee that others were falsely blaming him for serious breaches of confidentiality was not a complaint about a failure to comply with a legal obligation. It was clearly an allegation that he was being defamed.  It did not matter whether he used the precise legal terminology of defamation when he made the disclosure.

However, the EAT agreed that the tribunal was entitled to decide that the disclosure did not meet the public interest test. Mr Ibrahim’s concern was only that false rumours about him had been made and about the effect of those rumours on his reputation. He was seeking to protect his personal interest and had not made the disclosure in the public interest.  

Implications

Under the whistleblowing legislation, information which tends to show a breach of any legal obligation qualifies for protection. This is very wide and cover duties in tort (including defamation), as well as statutory and contractual obligations.  However, to qualify for protection, a disclosure also has to be made in the public interest.  Mr Ibrahim’s allegation did not qualify because, although he could show a breach of a legal obligation in being defamed, the public interest element was not satisfied. The public interest test, which was introduced in 2013, prevents workers from “blowing the whistle” about breaches of obligations owed only to themselves, or other matters which have no connection to the wider public interest.