Can Making an 'Allegation' Amount to Whistleblowing?
In the recent case of Kilraine v London Borough of Wandsworth, the Employment Appeal Tribunal (EAT) has confirmed that an 'allegation' can qualify for protection under the whistleblowing legislation, updating guidance provided in 2010.
To qualify for protection under the whistleblowing legislation an individual must 'disclose information', as well as complying with other requirements. In the case of Cavendish Munro v Geduld, heard in 2010, the EAT drew a distinction between disclosing information and making an allegation. On the facts of that case, the EAT found that simply making an allegation did not result in any information being disclosed.
Since then, employers have increasingly asked employment tribunals to decide whether an individual has disclosed information or made an allegation. If an allegation has been made, the tribunal has been asked to conclude that the individual is not protected by the whistleblowing legislation.
In Kilraine, the outgoing President of the EAT has made it clear that drawing a distinction between disclosing information and making an allegation is not always helpful as very often the two are intertwined. The parties should concentrate on whether there has been a disclosure of information. Whether an allegation has been made is not relevant.
To quote from paragraph 30 of the judgment:
'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 the 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.'
Best Practice
When assessing whether an individual qualifies for protection under the whistleblowing legislation, employers and their advisers must concentrate on whether any information has been disclosed (as well as looking at the other elements of the legal test). Whether an allegation has been made is not central to this question.