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Whistleblowing: When is a Disclosure Protected?

29 June 2018


In Kilraine v London Borough of Wandsworth the Court of Appeal has confirmed that to be protected under whistleblower legislation, disclosures need to be more than mere allegations and have sufficient factual content and specificity of a relevant failure set out in the Employment Rights Act 1996.

We previously blogged on the EAT decision here. The Court of Appeal dealt with two of the disclosures made by the Claimant:

  1. An email to the Council’s Assistant Director of Children’s Services stating that the Council was failing in its legal obligations towards her in respect of bullying and harassment with ‘numerous incidents of inappropriate behaviour towards me’; and
  2. An email to the Council’s HR department complaining of a lack of support from her line manager when she raised a safeguarding issue.

The Court of Appeal upheld the EAT’s decision that the above two disclosures did not disclose any information alleging a relevant failure under the ERA 1996 and so were not protected disclosures (thus did not qualify for whistleblowing protection).

Helpfully, the Court of Appeal set out that in determining if a disclosure is protected, the key issues are whether the disclosure contains sufficient factual content and is specific enough to be capable of showing one of the relevant failures set out in the ERA 1996.  

The case gives useful clarity on when a disclosure is protected under whistleblowing legislation, but since the test looks at the ‘reasonable belief of the worker’ making the disclosure, there is still an element of subjectivity, so the matter remains fact-specific. Employers should adopt effective whistleblowing procedures to help deal with allegations effectively and reduce the risk of claims for workers being subjected to detriments following a protected disclosure.

Michael Hibberd

Michael Hibberd
Senior Solicitor

E: contact@forburypeople.com
T: 0118 953 3929

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