Can purely ‘personal’ disclosures be covered?
The law protects employees from dismissal, and both employees and workers from being subjected to a detriment, where they ‘blow the whistle’ on wrongdoing within a company. To benefit from that protection, there must be a ‘qualifying disclosure’ of information about specific types of wrongdoing (including but not limited to criminal offences, health and safety dangers and breaches of legal obligations) by an individual who reasonably believes both that the wrongdoing has occurred and that disclosure is in the ‘public interest’.
What amounts to being in the public interest is not defined by legislation, however a recent case in the Employment Appeal Tribunal (EAT) has confirmed that individuals who raise matters solely in their own self-interest are unlikely to benefit from whistle-blower protection.
The case concerned Mr Ibrahim, who worked as an interpreter within several private hospitals. After hearing rumours that he had been responsible for breaches of patient confidentiality, Mr Ibrahim asked a senior manager to investigate and stressed that he needed to clear his name. Mr Ibrahim was later dismissed and brought a claim that he had been subjected to a detriment contrary to whistleblowing legislation.
Although accepting that disclosures of the type made by Mr Ibrahim (essentially one of defamation) could fall within the scope of the legislation (being an alleged breach of a legal obligation), the EAT ultimately dismissed the claim because the evidence showed Mr Ibrahim’s only concern was how the matter impacted on him personally; he had failed to show that he reasonably believed his disclosure was in the public interest at the time he made it.
While this decision will be of some comfort to employers, the public interest question will generally turn on the specific facts of each case. Had Mr Ibrahim placed more emphasis on his concern for patient data, for example, this might have impacted on a tribunal’s analysis. It is therefore important to take advice even where a disclosure appears on the face of it to be purely personal, and to ensure that whistleblowing policies and procedures are circulated to staff and kept up-to-date.