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Whistleblowing - Allegation or Information?

In the recent case of Kilraine v London Borough of Wandsworth, the EAT (Employment Appeal Tribunal) provided a reminder that it is not good enough for an employee to just raise  concerns or allegations  to  qualify as a protected disclosure – they must disclose information in order to have the protection of the whistleblowing legislation.  The EAT in this case highlighted however that allegations and information are often intertwined and that a disclosure may also include allegations.

Ms Kilraine was employed as an Education Achievement Project Manager for London Borough of Wandsworth.  During her employment Ms Kilraine, claimed that she had made four disclosures that included complaints regarding health and safety and that the organisation had failed in its legal obligation towards her by not dealing with her bullying and harassment complaints she had raised against her colleagues. In particular, Ms Kilraine had cited that “there were numerous incidents of inappropriate behaviour towards me" but did not provide specific detail.

Following her disclosures, Ms Kilraine was suspended pending a disciplinary investigation into whether she had raised unfounded allegations against colleagues.  At the same time and  during her suspension, a re-structure was being undertaken by the organisation, which resulted in her dismissal by reason of redundancy.

After her dismissal, Ms Kilraine brought a claim in the Employment Tribunal (“ET”), stating that she had made protected disclosures during her employment.  She claimed that she had been subject to unlawful detriment and that she had been unfairly dismissed because of raising her alleged protected disclosures.

The ET dismissed her claims on the grounds that, amongst other things, she has not conveyed information about certain of her alleged protected disclosures.  The ET found that because of this she had not made a qualifying disclosure but had instead only made allegations.

Ms Kilraine appealed this decision to the Employment Appeal Tribunal (“EAT”).  The EAT largely agreed with the decision of the ET.

The EAT did not however agree with a particular finding of fact of the ET with regard to its view of the relationship between ‘allegation’ and ‘information’ in relation to a particular email sent by Ms Kilraine.  The ET had found that an email that Ms Kilraine sent to a Human Resources Officer, in which she stated that at a meeting her line manager had failed to support her when she had raised a safeguarding issue, was an allegation and not a disclosure of information. 

The EAT found that that this email did provide information (as opposed to merely being an allegation) in relation to the meeting that took place with Ms Kilraine’s line manager. However,  the EAT held that even though it was a disclosure of information, Ms Kilraine had not shown in that information that her line manager's behaviour was in breach of any legal duty or a criminal offence. Ms Kilraine was therefore unsuccessful in her appeal.

What do you need to be doing now and what does this mean for you or your business?

When organisations are faced with assessing whether an individual qualifies for protection under the whistleblowing legislation, it is important to assess whether any disclosure is simply an allegation (as was the case here) or whether information has been disclosed amongst an allegation that qualifies as a protected disclosure.  If an employee makes what looks on the face of it to be just an allegation, dig deeper to consider whether there is any information hidden amongst that allegation.  If in doubt deal with the allegation as a protected disclosure under your whistleblowing policy.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.

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