Workplace whistleblower - what disclosed information keeps you protected?
Workplace whistleblowing can pose difficult dilemmas for businesses. Whistleblowers need careful handling in order to minimise the risk of Employment Tribunal claims, and the fact that it can be difficult to identify whether someone is a whistleblower makes this even trickier. A recent Court of Appeal case (Kilraine v Wandsworth) provides some useful guidance on this.
The Claimant had written to a senior manager, complaining that her employer was failing in its legal obligations towards her in respect of bullying and harassment and complaining of 'inappropriate behaviour'. Separately, she complained that her line manager had failed to support her over a safeguarding issue.
The question was whether these complaints were 'protected disclosures' (i.e. acts of whistleblowing). Previous cases had suggested that, in order to be a protected disclosure, a communication must include factual information, rather than just alleging that a legal obligation has been breached. A statement that a hospital ward had used needles on the floor could be a protected disclosure, whereas a statement that the hospital wasn't complying with health and safety laws would not be, because it contains no factual detail.
The Court confirmed that, to be a protected disclosure, a complaint about a breach of a legal obligation must contain some supporting factual information. However, it also said that that information could come from the context. Gesturing at needles on the floor and saying 'The hospital is breaching health and safety laws' would therefore be a protected disclosure. Likewise, if the same worker had previously raised the factual issues and then said that there was a breach of a legal obligation, that second complaint could also be a protected disclosure.
This is important for employers because workers raising concerns (whether justified or not) will often complain several times, with slightly different information each time. This overall context could mean that complaints which don't at first glance look like protected disclosures should be treated as such. In many cases, it will be sensible to assume that the worker may be protected under whistleblowing law. From a strategic perspective, ensuring that the business has robust mechanisms for workers to raise concerns and for such concerns to be investigated and addressed is essential to minimise the risk of claims.
If you would like any further information, please contact Head of Employment, Jane Amphlett.