Whistleblowing – information or allegation?

Posted: 12th July 2018

WhistleblowingWorkers who disclose information in the public interest are entitled to protection as whistleblowers – but what exactly qualifies as ‘information’ within the meaning of the Employment Rights Act 1996? The Court of Appeal has considered that issue in a guideline case.

A local education authority employee claimed to have suffered detrimental treatment as a result of making protected disclosures. She argued that a letter she had written to a superior, complaining that she had not been invited to attend a particular meeting, amounted to such a disclosure.

However, in dismissing her challenge to a ruling of the Employment Appeal Tribunal (EAT) to like effect, the Court found that, although the letter contained an allegation of mistreatment, it did not include the minimum factual content required for it to be described as information.

An email that the woman had sent to a human resources officer, in which she said she had reported a safeguarding issue to a colleague but had not received a satisfactory response, did provide information. However, it could not found a whistleblowing claim in that it did not tend to show that a person had failed, was failing, or was likely to fail, to comply with a legal obligation.

The employee previously had her unfair dismissal claim upheld by an Employment Tribunal (ET) on the basis of a failure to consult with her. However, she was awarded no compensation after the ET found that she would have been made redundant in any event. Her claim that she had been automatically unfairly dismissed due to whistleblowing activities failed.