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Whistleblowing & defamation

Mr Ibrahim worked as an interpreter in a private hospital, supporting patients who required interpretation services. He became aware of false rumours circulating about him, including that he had breached patient confidentiality. Although patients never formally alleged that he had breached confidentiality, Mr Ibrahim raised a grievance which made clear that he took the matter very seriously and considered it necessary to “clear his name”. However, his grievance was not upheld, and sometime later he was dismissed for what the hospital asserted was an unrelated reason.

Following his dismissal, Mr Ibrahim brought a number of complaints to the Employment Tribunal including that his grievance had amounted to an act of whistleblowing and was, therefore, protected under the law. His claim form also stated that he was claiming “damage to reputation/defamation” (not something that the Employment Tribunal has power to adjudicate on).

In order to qualify for whistleblowing protection, Mr Ibrahim’s disclosure had to fall within a limited number of categories (and he had to reasonably believe it was made in the public interest). Mr Ibrahim sought to rely on the category that the hospital had failed to comply with a legal obligation to which it was subject. 

The Employment Tribunal concluded that Mr Ibrahim’s attempts to clear his name were not the same as him complaining that there had been a breach of a legal obligation. They also found that Mr Ibrahim did not reasonably believe his grievance was in the public interest. The grievance was simply an attempt to clear his name.

On appeal, the Employment Appeal Tribunal disagreed with the Employment Tribunal’s reasoning about whether the hospital’s action (or inaction) was capable of being defined as a failure to comply with a legal obligation, and stated that that category should be broadly defined.

In relation to the “public interest test”, the EAT agreed with the Employment Tribunal’s finding that Mr Ibrahim’s only concern at the time of his grievance was that false rumours had been circulated about him. There was no evidence that he had any wider concerns regarding a breach of a legal obligation.

Overall Mr Ibrahim’s appeal failed, but the EAT’s approach shows how broad the category of ‘legal obligations’ can be. Even though Mr Ibrahim did not bring a valid claim for defamation (or even take steps to bring a claim), the EAT still considered that his concerns would fall into that category.

What does this mean for your business?

As always, care should be taken when conducting grievance proceedings to ensure that an employee has full opportunity to articulate the basis of their complaint. If the employee alleges that something that they are saying is in the broader public interest, it may also be necessary to consider why they believe that, and if that belief could be reasonable.

Recommended Reading

A link to the case can be found here.

 

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