Protected Disclosures - Information vs Allegations

The Court of Appeal (CoA), in the case of Kilraine v London Borough of Wandsworth, has reconsidered the circumstances in which allegations made by a worker may amount to a qualifying disclosure for the purposes of a whistleblowing claim.

Section 43B(1) of the Employment Rights Act 1996 requires there to be a disclosure of information which, in the reasonable belief of the worker making it, tends to show that one or more of six specified types of malpractice has taken place, is taking place, or is likely to take place.  To meet the requirements of section 43B(1), the disclosure of information must have sufficient factual content and be sufficiently specific, a bare allegation will not be sufficient.

The CoA agreed with the Employment Appeal Tribunal that two disclosures relied on by the employee were not "qualifying disclosures".  In doing so, the CoA reviewed previous judicial guidance but determined that the guidance had not been intended to introduce a rigid separation between "information" on the one hand and "allegations" on the other. The Court considered that sometimes a statement that could be characterised as an allegation will also constitute information and amount to a qualifying disclosure. 

This case serves as a reminder to organisations handling complaints that careful consideration must be had to determine whether the complaint which appears to be an allegation by a disgruntled worker, amounts to a disclosure of information capable of being a qualifying disclosure.

For more information please contact Nicola Gray or Martin Sinclair, or call 01224 632464.