The scope of protected disclosures

Rose Sunter considers a landmark Court of Appeal ruling that brings much needed clarity to the scope of the whistleblowers’ protection regime, introduced by the Public Interest Disclosure Act 1998.

Legal background

Part IVA of the Employment Rights Act 1996 (the “ERA”) (introduced by the Public Interest Disclosure Act 1998) sets out the regime for the protection of whistleblowers in a work context, by providing protection for workers making a “qualifying disclosure”.

Section 43B(1) ERA defines “qualifying disclosure” as any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show, among other things, that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.

In Cavendish Munro the Employment Appeal Tribunal (“EAT”) concluded that to fall within the statutory definition of “protected disclosure” there must be a disclosure of “information”, that is the conveying of facts, as opposed to mere allegations or position statements: the latter do not constitute “information” and therefore fall outside the scope of the protection regime.

As the events material to the challenge took place before 2013, the additional requirement that the disclosure be “in the public interest” was not applicable to the Appellant’s disclosures.

The Appeal In a nutshell

In Kilraine v Wandsworth London Borough Council [2018] EWCA Civ 1436 the Court of Appeal was asked to address whether the Employment Tribunal (“ET”) and (to the extent the ET’s ruling was corrected on appeal) the EAT erred in concluding that:

The Appellant’s complaint in a letter to the Respondent that there had been “numerous incidents of inappropriate behaviour towards [her], including repeated sidelining” (the “Third Disclosure”) did not constitute a disclosure of “information”;

The Appellant’s complaint in an email to the Respondent that her line manager had dealt unsatisfactorily with her report about a safeguarding issue in connection with a particular school (the “Fourth Disclosure”):

1. Was too vague to be treated as indicating that the Respondent had failed to comply with its statutory duties to “make arrangements” for ensuring that its functions are discharged having regard to the need to safeguard and promote the welfare of children (section 175 of the Education Act 2002 and section 11 of the Children Act 2004); and
2. Did not show as a matter of fact that the Appellant had formed a reasonable belief that there was a relevant legal duty.

The Third Disclosure

In connection with the Third Disclosure the ET, directing itself by reference to Cavendish Munro, concluded that the Appellant’s letter did not contain any “information”; instead it merely contained “allegations” falling outside the scope of section 43B ERA.

On appeal the EAT criticised the ET’s application of Cavendish Munro as setting out an overly rigid dichotomy between “information” and “allegations”, as reality suggests that the two will often be intertwined.

The EAT concluded that the ET had nonetheless been entitled to reach that conclusion, as it was clear that the Appellant’s letter did not convey “any information at all” and in any event the word “inappropriate” was far too vague to be treated as describing a failure by the Respondent to comply with a legal obligation.

The Court of Appeal agreed with the EAT’s interpretation of Cavendish Munro: all the EAT wanted to convey in Cavendish Munro was that vague statements such as “you are not complying with health and safety requirements” may be so general and devoid of specific factual content as to fall outside the scope of section 43B ERA. By referring to “information” and “allegations” as abstract concepts, however, Cavendish Munro had created confusion by diverting the attention from the statutory language.

The Court of Appeal concluded that to determine whether a qualifying disclosure falls within the scope of section 43B(1) ERA, the question should be whether the disclosure provides “a sufficient factual context and specificity such as is capable of tending to show one of the matters listed in subsection (1)” (e.g. the breach of a relevant legal obligation), and whether a particular disclosure satisfies the test of section 43B(1) should be assessed “in the light of the particular context in which it is made”.

The Court of Appeal agreed with the EAT that in the present case the Appellant had failed to identify any relevant context for the statement said to constitute the third disclosure that could have informed or supplemented its meaning and was in itself too vague to constitute a protected disclosure.

The Fourth Disclosure

By reason of the absence of anything in the Appellant’s case or witness statement to suggest that she had a breach of a relevant legal obligation in mind at the time of the Fourth Disclosure, the Court of Appeal concluded that the ET had been entitled to conclude that the Appellant had failed to satisfy the subjective requirement in section 43 ERA, namely that she believed at the time of the disclosure that the information in it tended to show that someone had failed to comply with a legal obligation.

The Appellant’s claim in connection with the Fourth Disclosure also failed to satisfy the objective requirement of section 43B ERA: to say that an individual officer of the respondent might have been unresponsive to a safeguarding issue is not indicative of a failure by the respondent to make appropriate general arrangements in accordance with the Education Act 2002 or the Children Act 2004.

Conclusions

After almost six years of protracted legal proceedings this is an important decision which brings some much needed clarity and common sense to a rather inconsistent line of ET and EAT decisions on the scope of the whistle-blowers’ protection regime introduced by the Public Interest Disclosure Act 1998.

The bottom line is that every determination of what constitutes a protected disclosure will have to grapple with the context of the disclosure and the relevant knowledge of the parties. Where, in the light of the factual context, the tribunal determines that the disclosure is overly vague and/or devoid of factual content tending to show a breach of one of the matters listed in section 43B (1) of the ERA, the disclosure will fall outside the protection regime.

The Appellant has applied to the Court of Appeal for permission to appeal.

Rose Sunter is a partner at Sharpe Pritchard. She acted for the London Borough of Wandsworth in the Kilraine case. Rose can be contacted on 020 7405 4600 or This email address is being protected from spambots. You need JavaScript enabled to view it..