UK: Can A Complaint About Defamation Be A Protected Disclosure For The Purpose Of A Whistleblowing Claim?

The law

The Public Interest Disclosure Act 1998 came into force on 2 July 1999, inserting sections 43A to 43L and 103A into the Employment Rights Act 1996 and providing protection for workers reporting malpractices by their employers, or third parties against victimisation or dismissal.

The legislation creates two levels of protection for whistleblowers:

  1. the dismissal of an employee will be automatically unfair if the reason, or principal reason, for their dismissal is that they have made a "protected disclosure"; and
  2. workers are protected from being subjected to a detriment on the ground that they have made a protected disclosure.

Demonstrating that the employee has made a qualifying disclosure is the first step in establishing protection under the whistleblowing legislation.

A qualifying disclosure is a disclosure of information which, in the reasonable belief of the worker making it, tends to show that one or more of six types of malpractice has taken place, is taking place or is likely to take place (section 43B(1), Employment Rights Act 1996). The six types of malpractice are:

  1. criminal offences;
  2. breach of any legal obligation;
  3. miscarriages of justice;
  4. danger to the health and safety of any;
  5. damage to the environment; and
  6. the deliberate concealing of information about any of the above.

Further, the worker must have a reasonable belief that the disclosure is in the public interest.

Whether a qualifying disclosure is also protected broadly depends on the identity of the person to whom the disclosure is made. The legislation encourages disclosure to the worker's employer in the first instance and such disclosures, as well as disclosures to a "responsible" third party or a "prescribed person", are likely to gain protection relatively easily. However, other wider disclosures, for example to the media, will only be protected in very limited situations.

Ibrahim v. HCA International Ltd UKEAT/0105/18

The Claimant, Mr Ibrahim, was employed as an International Patient Co-ordinator and worked as an interpreter for Arabic-speaking patients at the Respondent's private hospital.

He alleged that he made two protected disclosures to his employer: one on 15 March 2016 during a meeting with the Respondent's Director of Rehabilitation and the second on 22 March 2016 during a meeting with the Respondent's Chief Human Resources Officer. During the first meeting he said he asked the Respondent to investigate "false rumours" which were circulating about him in the workplace. He said that it was rumoured he had been involved in breaches of patient confidentiality and that a co-worker had been "slandering him" to his colleagues. During the second meeting on 22 March 2016, he said he told his employer that he felt "degraded, humiliated, shocked and confused" by the rumours. He said he told her he felt the rumours were so serious he needed to clear his name and restore his reputation. The Claimant alleged that, as a result of raising the concerns, he was removed from his role and "kicked out" of the International Relations Office.

The Employment Tribunal's findings

At a preliminary hearing before the Employment Tribunal, the Respondent argued that complaining about a rumour was not sufficient to amount to a disclosure of information, which tended to show that a breach of a legal obligation had occurred and, therefore, the Claimant's allegations could not constitute a protected disclosure. The Tribunal accepted the Respondent's argument and went on to find that, in any event, the case failed because the disclosures had not been made in the public interest. The case was dismissed.

The Employment Tribunal's decision was appealed and the EAT was asked to consider whether the tribunal had correctly interpreted and applied section 43B(1)(b), Employment Rights Act 1996 in two respects:

  1. whether the Claimant's allegations could amount to a protected disclosure; and
  2. whether the Claimant's allegations could be said to have been made in the public interest.

In order for the appeal to succeed, the EAT had to find in favour of the Claimant in respect of both grounds of appeal.

Before the Employment Appeal Tribunal

On the first ground of appeal, the EAT noted that the Claimant had listed "damage to reputation/defamation" as a claim in his originating ET1 and that, despite not having framed his claim in the appropriate legal terminology, it was clear that the Claimant was alleging he had been defamed by what he called the "false rumours". The EAT went on to find that section 43B(1)(b) was broad enough to include defamation and that the Tribunal had erred in concluding that the Claimant had not identified a legal obligation that may have been breached.

In relation to the second ground of appeal, the EAT reminded itself of the guidance provided by the Court of Appeal in relation to the public interest test in the case of Chesterton Global Limited (T/A Chestertons) v. Nurmohamed [2017] EWCA Ci 979. In Chesterton, Underhill LJ noted that, when considering whether a disclosure has been made in the public interest, a Tribunal judge has to ask itself: (a) whether the worker believed at the time that he was making it that the disclosure was in the public interest and (b) whether, if so, that belief was reasonable.

In the present case, the EAT considered that the Tribunal had, having heard all of the evidence, made a finding in fact that the Claimant's only concern was that false rumours had been made about him and the effect of those rumours on him. At the time the Claimant said he made his disclosures to his employer, he did not raise concerns of data protection breaches, nor did he focus on the patients and how the alleged rumours might affect them. Accordingly, the EAT held that the Tribunal was entitled, on the evidence, to find that the Claimant was, in making the disclosure, seeking only to protect his own personal interests.

As a result, the EAT held that the second ground of appeal failed and the Employment Tribunal's judgment was upheld.

Comment

As there is no financial cap on compensation in whistleblowing claims, and no requirement for claimants to have a minimum period of service before they can bring a claim, such claims can be an attractive option for claimants who do not have the requisite service to bring an unfair dismissal claim and a costly lesson if an employer gets it wrong.

This case is a useful reminder to us all that a "breach of a legal obligation" for the purposes of whistleblower protection is extremely wide and can cover a whole host of concerns. It is also a useful reminder that an employee does not necessarily need to frame their complaint in precise legal terminology in order for it to succeed although they do, clearly, have to be motivated by something other than self interest in order to satisfy the public interest element of the test set out in section 43B(1)(b).

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

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