Can complaining about defamation support a ‘whistleblowing’ claim? Yes, ruled the EAT in Ibrahim v HCA International, although on the facts the claim failed.
The objective of whistleblowing legislation is to protect employees from victimisation or dismissal for raising, in a responsible way, genuine concerns about wrongdoing in the workplace. An employee does not have to prove that the allegation of malpractice is true. If s/he genuinely believes that the malpractice has occurred or is likely to occur and their belief is, in the tribunal’s view, reasonable, it does not matter that the belief subsequently turns out to be wrong.
However, employees must still be able to demonstrate that they reasonably believed that the report of malpractice was “in the public interest”. The public interest requirement was introduced to prevent workers relying, as they were previously able to do, on alleged breaches of their own contract as whistleblowing reasons where the breach is of a personal nature and there are no wider public interest implications.
The Claimant worked in private hospitals as an interpreter. He asked his manager to investigate rumours circulating among patients and their families that he was responsible for breaches of patient confidentiality. He followed up with an email the same day, saying that he needed to “clear his name”. The manager referred the complaint to HR to whom the Claimant repeated that he wished to clear his name and restore his reputation. HR investigated and rejected the Claimant’s complaint. When he was later dismissed, the Claimant brought a tribunal claim, arguing that his complaint of false rumours that he had breached patient confidentiality amounted to whistleblowing.
The ET dismissed the whistleblowing claim. It ruled that a complaint that false rumours have been spread is not covered by the whistleblowing legislation. The tribunal also found that the Claimant’s complaint was not one that in his “reasonable belief… [was] made in the public interest”, as required by the legislation. In the tribunal’s view, the Claimant’s complaints about the rumours “were not made in the public interest, but rather they were made with a view to [the Claimant] clearing his name and re-establishing his reputation”.
The EAT dismissed the Claimant’s appeal but ruled that a complaint of defamation is covered by the whistleblowing legislation.
Agreeing with the Claimant on this point, the court ruled that whistleblowing protection is broad enough to include complaints of defamation. The Claimant’s complaint of damaging false rumours that he had breached patient confidentiality was an allegation that he was being defamed, even though he did not use the precise legal terminology in his complaint. Complaints of defamation are covered by whistleblowing laws. However, the tribunal had correctly decided that the Claimant did not have a subjective belief in the public interest element of his complaint and was only seeking to protect his personal interest.
This is a decision that will be of interest to any employer dealing with disciplinary or grievance issues in which an employee complains that he has been defamed.
To the extent that the public interest test puts an additional hurdle in the way of whistleblowers, the hurdle is set at a low level. But, as this decision shows, it is still necessary for an employee bringing a whistleblowing claim to show that s/he reasonably believes there to be a wider public interest involved and that the complaint is not one that only stems from a personal grievance which is excluded from whistleblowing protection.
Ibrahim v HCA International Ltd
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