22 April 2016 #Employment
The recent case of Kilraine v London Borough of Wandsworth has demonstrated that when assessing if there has been a disclosure of information, for whistle-blowing purposes, ‘information’ and ‘allegations’ are often intertwined and Tribunals should not fall into the trap of treating disclosures as either one or the other. Further, suspending an employee will constitute a continuing detriment and not just one that takes place at the point of suspension.
For a disclosure to attract whistle-blowing protection it must involve a ‘disclosure of information’ which means that it must convey facts. In light of this, mere allegations (such as ‘you are not complying with health and safety allegations’) will not amount to a disclosure of information.
In this particular case the Claimant made four disclosures, following which she was suspended pending a disciplinary investigation into whether she had raised unfounded allegations against her colleagues. During the Claimant’s period of suspension she was made redundant. The Claimant believed that her suspension and dismissal were on the grounds of her making protected disclosures and claimed unlawful detriment and unfair dismissal in the Employment Tribunal (“ET”). Her claims were dismissed, by both the ET and, later, the Employment Appeal Tribunal (“EAT”). However, one of the disclosures prompted different views on the relationship between ‘allegations’ and ‘information’.
The disclosure in question was an email the Claimant had sent to HR stating that, at a meeting on 16th June 2010, her line manager had failed to support her when she had raised a safeguarding issue. The ET held that this was allegation as oppose to a disclosure of information. However, the EAT was of the view that whilst the email did seem to make an allegation, it also gave information about what had happened during the meeting. The EAT warned Tribunals against trying to fit a disclosure into either an ‘allegation’ or ‘information’ when in reality a disclosure may be both.
Also of note in this case, was the decision of the EAT that the Claimant’s suspension was a continuing act and thus amounted to an ongoing detriment.
This case provides useful clarification that whilst allegations alone cannot amount to a ‘disclosure of information’ they may, in reality, also contain information capable of meeting this test. However, the case also demonstrates the complexities inherent in assessing if a disclosure is protected, with the Tribunals themselves holding different views!