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Can Making an Allegation Amount to Whistleblowing?

on Friday, 29 June 2018.

There is no reason why not, according to the Court of Appeal in Kilraine v London Borough of Wandsworth.

The facts of each case will be key and it is artificial to draw a firm distinction between making an allegation and disclosing information. 

Background

Ms Kilraine was employed by Wandsworth in a position which involved working on projects to try and improve educational standards in schools.

Ms Kilraine made a number of complaints about her colleagues during her employment. In September 2010, she was suspended pending the outcome of disciplinary proceedings for unfounded allegations against her colleagues. In September 2011, Ms Kilraine was dismissed on the grounds of redundancy.

The Tribunal Proceedings

Ms Kilraine issued a whistleblowing claim against Wandsworth alleging that her  dismissal was automatically unfair because it was linked  to various protected disclosures she had made. As part of her submissions, Ms Kilraine alleged that four of the complaints made during her employment were protected disclosures for the purposes of the whistleblowing provisions set out in the Employment Rights Act 1996, namely:

  1. that she had been discriminated against by Ofsted inspectors on the basis of race and religion;
  2. that there was a health and safety issue in the classroom;
  3. that a school was not complying with its legal obligations in respect of bullying and harassment;
  4. that she had not been supported by her line manager in raising a safeguarding issue to the school.

The Tribunal undertook a review of the four complaints and concluded that only the second complaint would constitute a protected disclosure but that this was out of time.

The Tribunal held that the other complaints were merely allegations. The Tribunal considered the distinction between making an allegation, and disclosing information, with only the latter satisfying the definition of a protected disclosure.

The Employment Appeal Tribunal Proceedings

Ms Kilraine appealed to the Employment Appeal Tribunal (EAT).

The EAT reconsidered the third and fourth complaints in particular. In doing so, it noted that 'allegations' and 'disclosures of information' are often intertwined. The Tribunal, when considering if something amounts to a protected disclosure, should pay attention only to whether there has been a relevant disclosure of information, whether or not it could also be defined as an allegation.

The EAT held that no relevant information had been disclosed in the third and fourth complaints and that these did not therefore constitute protected disclosures.

The Court of Appeal Decision

Ms Kilraine appealed this decision to the Court of Appeal (CoA).

The CoA agreed with the EAT that an allegation can also be a relevant disclosure of information, and made the following additional comments:

  • Words which are 'general' and do not contain much or any factual content will likely not be considered information;
  • Words which fall short of being a protected disclosure can be boosted by context or surrounding communications; and
  • Determining whether there has been a disclosure of relevant information involves an analysis of all of the facts and circumstances of the case.

Best Practice

There is no clear distinction between an allegation and a disclosure of information. They can be intertwined and each case will need careful consideration on the facts.

Employers are advised to follow an established investigation process in the event of an allegation or complaint. It is through following such a process that employers will be able to assess whether information has been disclosed containing specific facts, which could satisfy the requirements of a protected disclosure for whistleblowing purposes.


For more information, please contact Amaya Hobby in our Employment team on 0117 314 5640.