Protected Disclosure

Can complaining about defamation form the basis of a protected disclosure in a 'whistleblowing' claim?

Yes, held the EAT in Ibrahim v HCA International, although on the facts the public interest test was not met.

Whistleblower​

A whistleblower is a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct within an organisation that is either private or public.

Ibrahim v HCA International

The Claimant was an interpreter at a hospital. He alleged in grievances that colleagues had falsely blamed him for breaches of confidentiality. The employment tribunal dismissed the claim on the basis that the allegations did not come within the scope of alleging a failure to comply with a legal obligation, and he did not have a subjectively reasonable belief that they were in the public interest.

The EAT held that by complaining about defamation, the Claimant had disclosed information tending to show that a person had failed to comply with a legal obligation. This met the test for whistleblowing, which is wide enough to cover allegations of defamation.

Meeting the public interest test

However, on the second limb, the tribunal was entitled to hold that the Claimant did not have a subjective belief at the time that his allegations were in the public interest, his concerns centred around his personal situation, so the appeal failed.

Kate Fretten, Employment Partner says “Whistleblowing is a complex area of employment law. While cases are relatively rare compared to standard unfair dismissal claims, potential costs can be large, as there is no cap on compensation awards. Employers should consider familiarising themselves with, or reviewing and updating, their whistleblowing policy. I am more than happy to assist should you need any help with this at all.”

 

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 Kate or Paul will be happy to discuss it with you.