In Kilraine v London Borough of Wandsworth, the Court of Appeal agreed with the Employment Tribunal that an employee did not make protected disclosures when she complained to her employer about bullying, harassment, inappropriate behaviour and lack of managerial support over a safeguarding issue.  The Court said that to consider whether a disclosure is protected, tribunals do not need to look to whether it is information or an allegation – the legislation does not provide for this dichotomy and these are not always mutually exclusive – an allegation could be a disclosure as well.  Instead, it should consider whether the disclosure has sufficient factual content and specificity such as is capable of tending to show one of the six relevant failures in s.43 of the Employment Rights Act 1996, including a criminal offence, non-compliance with a legal obligation and/or health and safety issues.

Here, the Claimant, an education achievement project manager contended that the Council had failed in its legal obligations towards her in respect of bullying and harassment and that there had been “numerous incidents of inappropriate behaviour towards” her, as well as contending that the lack of support she had received from her manager was a safeguarding issue.   She argued that because of her whistleblowing she had been subjected to detriments and then dismissal.  The Court held that the Claimant had not disclosed information which tended to show a breach of any of the six relevant failures, and that just because the Council were unsupportive in responding to a safeguarding issue, this was not indicative of a failure either.

Upon reviewing this decision, if a worker is subject to discrimination, they may be better raising such complaints in the Employment Tribunal as victimisation, asserting that they have been retaliated against because they complained of discriminatory bullying and harassment and unsafe work practices.  In standalone whistleblowing claims, a disclosure must have sufficient specificity of the employer’s wrongdoing in order to qualify for protection and thus to succeed.

Written by Anita Vadgama