Whistleblowing disclosures: wrong to distinguish between information and allegations
In order for a disclosure to be protected under the whistleblowing legislation, it has to have sufficient factual content and be sufficiently specific so that it is capable of tending to show a failure to comply with a legal obligation (or other relevant failure). The fact that it may also contain an allegation does not mean that it cannot qualify for protection.
In Kilraine v London Borough of Wandsworth, Ms Kilraine, who worked at school, claimed detrimental treatment on whistleblowing grounds. She said she had made two whistleblowing disclosures:
- that the Council had failed in its legal obligations towards her in respect of bullying and harassment and there had been “numerous incidents of inappropriate behaviour” towards her; and
- that her line manager had not supported her when she raised a safeguarding issue.
The employment tribunal rejected her claim, ruling that neither of the disclosures she relied on disclosed information and the second did not tend to show a breach of a legal obligation (or other relevant failure). Instead they contained only allegations.
Ms Kilraine appealed to the Employment Appeal Tribunal (EAT) which warned employment tribunals not to fall into the trap of thinking that an alleged disclosure had to be either an allegation or information, when it may be both. However, it agreed with the employment tribunal that Ms Kilraine had not disclosed information which tended to show that that Wandsworth had failed to comply with a legal obligation. Her whistleblowing claims therefore failed. Ms Kilraine appealed to the Court of Appeal (CA).
The CA agreed with the EAT that the concept of “information” used in the whistleblowing legislation is capable of covering statements which might also be characterised as allegations. Tribunals should not therefore introduce a rigid dichotomy between “information” on the one hand and “allegations” on the other. The question in each is whether a particular statement or disclosure is a disclosure of information which, in the reasonable belief of the person making it, tends to show a failure to comply with a legal obligation (or another relevant failure). The word “information” has to be read with the qualifying phrase “which tends to show”. In order for a statement or disclosure to be a qualifying disclosure, it has to have sufficient factual content and be sufficiently specific so that it is capable of tending to show a relevant failure. In addition, if the facts disclosed are capable of tending to show a relevant failure, and the worker disclosing them subjectively believes that they do, it is likely that his belief will be a reasonable one.
Although the tribunal had been wrong to apply a rigid dichotomy between information and allegations, it had nevertheless come to the correct conclusion when it ruled that neither of the disclosures tended to show a failure to comply with a legal obligation or any other relevant failure.
The fact that a disclosure contains an allegation does not mean that it cannot be a disclosure of information for the purposes of a whistleblowing disclosure. Claimants in whistleblowing claims will be able to rely on a disclosure if it contains information in the form of specific facts which tend to show a relevant failure. If no facts are disclosed, or if the facts disclosed are vague and do not tend to show a relevant failure, then the claimant will not be able to rely on the disclosure as a basis for a whistleblowing claim.
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