Linnea Keldusild explains how to recognise when a worker's disclosure is likely to give them protection under whistleblowing legislation
Whistleblowing claims continue to have a high profile, so it is important to be able to identify when a disclosure is likely to be a qualifying disclosure, giving the worker protection under the Public Interest Disclosure Act 1998 (PIDA).
A qualifying disclosure is a disclosure of information that, in the reasonable belief of the worker making it, is in the public interest and tends to show one or more relevant failures, for example, in relation to health and safety, or a breach of a legal obligation.
In 2010, in Cavendish Munro Professional Risks Management v Geduld, the Employment Appeal Tribunal (EAT) held that the ordinary meaning of disclosing ‘information’ is conveying facts. The EAT made a distinction between disclosing ‘information’ and making an ‘allegation’, comparing the disclosure of:
‘information’ – for example: ‘The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around’; with
making an ‘allegation’ – for example: ‘You are not complying with health and safety requirements.’
An allegation did not give the worker whistleblowing protection.
However, last year, in Kilraine v London Borough of Wandsworth, the EAT warned against the Cavendish approach, stating that “reality and experience suggest that very often information and allegation are intertwined” and “the question is simply whether it is a disclosure of information. If it is also an allegation, that is nothing to the point.”
The upshot of Kilraine was that workers making allegations would now be protected from suffering a detriment on the grounds that they made that allegation, as long as the allegation also contained a disclosure of information.
The point was recently considered again by the EAT in Eiger Securities v Korshunova. Ms Korshunova was a broker. Eiger used Bloomberg chat to liaise with traders, and there was a practice of sharing passwords. Ms Korshunova challenged her manager about his use of her computer screen without identifying himself to her clients. She had told her manager: “It is wrong for you to log in under my name when I am not in the office and trade under my name without making it clear that is not me making the trade […] My clients do not like that you talk to them pretending it is me.”
The EAT found that this was an example of where an allegation and information were intertwined. If the disclosure had just included the first part of the statement, then it probably would have simply been an allegation. However, because Ms Korshunova went on to give information about what her clients thought of the manager's behaviour, this made it a ‘disclosure of information’ – potentially giving Ms Korshunova PIDA protection, if that disclosure tended to show a breach of a legal obligation.
Eiger illustrates that analysing disclosures outside the courtroom is rarely straightforward. Recognising when a worker may have made a disclosure likely to qualify for PIDA protection is therefore key. As the case law stands, simply saying, for example, ‘your treatment of the patients is disgusting’, or ‘the financial director is guilty of fraud’, is not going to be sufficient to amount to a ‘disclosure of information’, and workers making such allegations will not be protected if they suffer a detriment as a result.
However, bearing in mind the subtleties, managers and HR professionals must be alive to the potential for employees who make allegations that may also contain information to be whistleblowers. Consideration should be given to addressing the concerns appropriately. Often, this will be in the form of the whistleblowing policy but it could be a grievance or dignity at work policy.
Linnea Keldusild is a senior associate at DAC Beachcroft