When is a disclosure not a disclosure?

For many years now whistleblowers have had to show that they have made a disclosure of information rather than simply made an allegation. Ever since this issue arose in the 2010 case of Cavendish Munro it has been a thorn in the flesh of litigants trying to determine whether a statement made amounts to a protected disclosure within the statutory definition. In the case of Kilraine v Wandsworth Borough Council [2016] IRLR422, Mr. Justice Langstaff highlighted the danger of being too regimented about elevating this distinction in to an overarching principle. The Court of Appeal has now upheld his decision.

The Facts

The Claimant had been employed by the Respondent local authority from September 2003 until September 2011 holding at the end of her employment the position of Education Achievement Project Manager. She was placed on leave in June 2010 as a result of concerns about the effect of her returning to work and this was followed by a disciplinary suspension. This lasted until the date of her dismissal following a redundancy exercise where 16 officers in the Education department lost their posts. There were four alleged disclosures which the tribunal had to determine:

• the first, in 2005, was that OFSTED inspectors had discriminated against her on grounds of race and religion (the Claimant is Irish and was supposed by the inspectors to be Catholic);
• the second in 2008 was in relation to a child masturbating openly in a class-room;
• the third in 2009 was made to the assistant Director of Children’s Services to the effect that the Respondent was failing in its obligations in respect of bullying and harassment; and
• the fourth in June 2010 was to a human resources officer that her line manager had not supported her when she, the Claimant, had raised a safeguarding issue in relation to a school.

At the start of the hearing the employment judge decided to strike out all but the second disclosure. The third and fourth disclosures were rejected as not amounting to disclosure of information but merely allegations.

The tribunal accepted that the Claimant’s dismissal (which occurred after a structured redundancy process) had not been caused by second disclosure but was attributed solely to redundancy. On appeal, the Claimant contended that the tribunal had erred in law (among other things) in relation to its conclusions that disclosures 3 and 4 amounted to mere allegations and not disclosures of information.

The EAT decision

The arguments advanced in relation to the third and fourth disclosures were based on the difficulties created by Cavendish Munro Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 39. In that case Mrs. Justice Slade had accepted the argument that the statute requires a disclosure of ‘information’ as distinguished from an ‘allegation’ and had given the clear example:

‘Further the ordinary meaning of giving ‘information’ is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating ‘information’ would be ‘The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around’. Contrasted with that would be a statement that ‘you are not complying with health and safety requirements.’ In our view this would be an allegation not information.’

In that case, which concerned a company director complaining about the way the company was being run, the EAT concluded that a solicitor’s letter setting out the Claimant’s position that the employer was in breach of its obligations did not meet the statutory test. They concluded ‘it is a statement of position quite naturally and properly communicated in the course of negotiations between the parties.’ Mrs. Justice Slade went on to say, obiter, that it was not unusual that solicitors are asked to write on behalf of employees. If an employee is feeling badly treated, the solicitor may write to say that the employer is in breach of contract. ‘There may be allegations over allocation of work or that the employee has been overlooked for a promotion. The solicitor may say, if the situation does not improve, we have advised our client that he can resign and claim constructive dismissal’. She concluded that this would not amount to a disclosure of information.

Tribunals and litigators have sought to give effect to this dichotomy with mixed results. In Western Union Payment Services v Anastasiou (2013) HHJ Eady reviewed the authorities and noted that the distinction can be a fine one to draw and one can envisage circumstances in which the statement of a position could involve the disclosure of information, and vice versa. The assessment as to whether there has been a disclosure of information in a particular case will always be fact-sensitive. As is often the case, a claimant will make an allegation which may contain some information but query whether the facts contained are sufficiently explicit to enable the employer and tribunal to ascertain what act or omission has been referred to and particularly was limb of section 43 has been breached particularly where there is cause to say that the employer is or may be in breach of a legal obligation.

In his decision in Kilraine, Mr. Justice Langstaff agreed that, on the facts of Cavendish Munro, there was nothing in the letter from the Claimant’s solicitor to the employer that disclosed information. However, he also pointed out:

‘The dichotomy between ‘information’ and ‘allegation’ is not one that is made by the statute itself. It would be a pity if tribunals were too easily seduced into asking whether it was one or other when reality and experience suggest that very often information and allegation are intertwined. The decision is not decided by whether a given phrase or paragraph is one or rather the other, but is to be determined in the light of the statute itself. The question is simply whether it is a disclosure of information. If it is also an allegation, that is nothing to the point.’

Ms. Kilraine’s third purported disclosure was contained in a letter which stated ‘Since the end of last term there have been numerous incidents of inappropriate behaviour towards me, including repeated side-lining, and all of which I have documented. As an example I have brought to your attention the inappropriate behaviour of Liz Rayment-Pickard, and despite your undertaking have received no feedback.’

Mr. Justice Langstaff agreed that the letter did not convey information and ‘if one removed the word ‘inappropriate’, it did not sensibly convey information at all’ because it was too vague.

In turning to the fourth purported disclosure, he concluded that this did provide information, although it contained an allegation:

‘She did not support me as she claims, when I reported a safeguarding issued during the same meeting. Her response, which shocked me was ‘I can’t comment’. This was repeated, belittling and I tried very hard to engage her as my line manager in the report.’

This was rejected as a protected disclosure by the tribunal because it had not been shown that there was any legal duty to which Ms. Rayment-Pickard was subject which she had broken by what she had said, nor had the Claimant shown that she had reasonably believed that there as such a duty. The Claimant sought to argue that Ms. Rayment-Pickard/the Respondent was in breach of section 11 of the Children Act 2004 and/or section 175 of the Education Act 2002. The EAT concluded that those provisions related to duties on public authorities to make arrangements, in essence to protect children. In that context Wandsworth had clear procedures for safeguarding children under its remit and there was nothing to suggest that Ms Rayment-Pickard or the authority was in breach of such obligations. The procedure involved notifying the school first and it was important that the procedure was followed. Assuming that this letter imparted information it is not clear why Ms. Rayment-Pickard’s comments would have fallen foul of a duty under those provisions or that they had been in the mind of the Claimant at the time or had been articulated. This line of attack also failed.

The Court of Appeal

Ms Kilraine appealed to the Court of Appeal on two grounds namely that the ET erred in concluding that the third disclosure was not a protected disclosure and that it erred in reaching a similar conclusion in respect of the fourth disclosure. The case was heard by Kitchin and Sales LJJ. Giving the judgment of the court, Sales LJ dismissed the appeal. They acknowledged that Cavendish had caused some confusion and that the tribunal in the present case had fallen into error but that this had been corrected by Langstaff J. Sales LJ concluded:

‘In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). The statements in the solicitors’ letter in Cavendish Munro did not meet that standard.’

He continued that whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. The errors of law made by the tribunal below in its overly rigid consideration of whether there had been a disclosure of information and not mere allegations had been corrected by Langstaff J in the EAT and their Lordships agreed with his approach to such cases. They rejected the argument that Cavendish should be overturned as having been wrongly decided. Any purported disclosure will have to be considered in the context of other information which is known to determine whether it is a protected disclosure within the meaning of the Act. The Claimant will in particular need to show, as required by the legislation that s/he has a reasonable belief that the information tends to show relevant breach. In this case Ms. Kilraine had not shown the requisite belief in relation to the fourth disclosure.

The decision constitutes a helpful clarification of the law in this difficult area.

Click here to read the judgement in full.

Susan Belgrave acted for the successful Respondent, Wandsworth Council and was instructed by Sharpe Pritchard LLP.

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