Generalised health and safety concerns did not amount to protected whistleblowing disclosure

Background

In the case of Capeling v TFX Group Ltd, the claimant was employed by a medical device manufacturer as a National Sales Manager. She was dismissed during her probationary period after less than six months’ service, with the employer citing poor performance.

Because the claimant did not have the qualifying service required for an ordinary unfair dismissal claim, she instead alleged that she had been automatically unfairly dismissed and subjected to detriment for whistleblowing.

To qualify for whistleblowing protection, a worker must make a “protected disclosure”. Broadly speaking, this means disclosing information which they reasonably believe tends to show wrongdoing such as breaches of legal obligations, health and safety risks, or the concealment of such matters. Importantly, there must generally be sufficient factual content to the disclosure, rather than a vague allegation or expression of concern.

The claimant relied on three alleged disclosures. The appeal concerned only the third alleged disclosure, which related to concerns that some dispensing appliance contractors did not have written contracts in place with the respondent.

The claimant alleged that she had informed management that the absence of these contracts was putting patient health and safety at risk and that the issue had been or was likely to be deliberately concealed.

EAT decision

The Employment Appeal Tribunal dismissed the appeal and upheld the Tribunal’s conclusion that the disclosure was not protected.

The EAT accepted that the claimant had informed management that some contracts were missing. However, it agreed with the Tribunal that this was accompanied only by a broad and unspecified assertion that patient health and safety was at risk.

The EAT emphasised that whistleblowing protection requires the disclosure of information with sufficient factual content and specificity to show the alleged wrongdoing or danger. A generalised assertion of risk, without explaining how or why the absence of contracts created a health and safety issue, was insufficient.

The Tribunal had also accepted evidence from the employer that the absence of written contracts did not affect patient safety because standard terms and conditions applied where bespoke agreements were absent.

Importantly, the EAT also agreed that any belief held by the claimant about a connection between missing contracts and patient safety was not objectively reasonable in light of her role and knowledge within the organisation. The Tribunal had been entitled to conclude that someone in the claimant’s position ought reasonably to have understood that the absence of written contracts did not itself create a health and safety risk.

The EAT rejected the appeal as an attempt to re-argue the factual findings reached by the Tribunal.

Learning points for employers

This case is a useful reminder that not every workplace concern or criticism will qualify for whistleblowing protection. General assertions of wrongdoing or health and safety concerns may not be sufficient unless they are supported by factual information capable of showing the alleged issue.

The decision also demonstrates the importance of the employee’s reasonable belief. Tribunals will consider not only what the employee genuinely believed, but also whether that belief was objectively reasonable in light of their role, experience and knowledge.

For employers, the case highlights the value of carefully documenting the nature of any concerns raised by employees and investigating whether the concerns contain sufficiently specific factual allegations. It also underlines the importance of ensuring managers understand that employees with short service may still bring claims if they allege dismissal for whistleblowing reasons.

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For more information or advice, please get in touch with Lucy Cinnamond in our Employment team.