That's one of the questions that many HR practitioners may be asking themselves after the decision in Kilraine v Wandsworth LBC.
There is natural tendency for us to focus on the 2 year qualifying period for unfair dismissal and the protected characteristics of sex, race, disability, sexual orientation, religion and belief, age, gender reassignment, pregnancy and maternity and marriage and civil partnership when we are assessing risks in specific cases. It is important that we do not forget the protections given to employees by the whistleblowing legislation of 1998 (The Public Interest Disclosure Act 1998).
So - how do we identify this risk?
To assess risks we need to be able to identify whether a disclosure has been made. This is set out under section 43B Employment Rights Act 1998.
"means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show......
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed."
The importance of Kilraine - information or allegations?
Previous case law (Cavendish Munro) has relied quite strictly on making a distinction between "information" and an "allegation". This ruling gave the impression that an allegation in itself was not sufficient to be a qualifying protected disclosure. The problem that this causes is that it can result in HR and employment law practitioners taking too narrow of an approach to assessing risk.
In Kilraine, the Claimant relied on the following as her protected disclosure:
"Since the end of last term, there have been numerous incidents of inappropriate behaviour towards me, including repeated sidelining, and all of which I have documented."
Is this just an allegation or does this provide sufficient information to provide Karen Kilraine with protection under whistleblowing legislation?
The Court of Appeal's judgment in Kilraine ensures that tribunals take a more nuanced approach to this rather than relying on clear disctinctions between allegations and information. The very fact that something is a broad allegation does not necessarily preclude it from being a disclosure.
This means that even where a broad allegation is made by an employee (or worker) there may still be a disclosure of information which is sufficient to be a qualifying protected disclosure. The tribunals will assess each potential disclosure on its own merits as to whether is meets the requirements of section 43B. The factors that are likely to be taken into account when making this assessment include:
- the identity of the person making the disclosure;
- the stage at which the disclosure is made;
- whether it has been made in general terms in order to raise the alarm with the anticipation of providing more specific and detailed information.
- Be aware of the type of information that may constitute a protected disclosure;
- Ensure that your managers and supervisors are trained in relation to the risks of claims of detriment in relation to whistleblowers;
- Ensure that whistleblowers are not lazily categorised as 'moaners' or not team players simply because they don't agree with you or the business and are treated detrimentally as a consequence.
For further advice - call us.
If.... the worker brings his manager down to a particular ward in a hospital, gestures to sharps left lying around and says "You are not complying with Health and Safety requirements", the statement would derive force from the context in which it was made and taken in combination with that context would constitute a qualifying disclosure. The oral statement then would plainly be made with reference to the factual matters being indicated by the worker at the time that it was made.