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Worker claimed protection of whistleblowing laws to clear his name

Is asking to ‘clear your name’ a public interest disclosure capable of protection under whistleblowing legislation?

That was the issue before the employment tribunal, the Employment Appeal Tribunal and the Court of Appeal in a recent case.

Legal Principles

Under S.47B of the Employment Rights Act 1996, workers who make certain types of allegations of wrongdoing are protected against being dismissed if the reason for their dismissal is because of their disclosure.

The disclosure must make a specified allegation of wrongdoing, which includes that “a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject”, and the person making the disclosure has to show they had a reasonable belief that their disclosure was in the public interest.

Workers who lie or make their disclosure only to advance their own interests may lose that protection.

Facts

The Claimant was engaged on a casual basis to interpret for the Arabic speaking patients at a private hospital.

He complained to a manager that false rumours were circulating that he had breached patient confidentiality. He told the manager that he wanted an investigation to “clear his name and restore his reputation”.

When the Claimant was subsequently dismissed, he brought a claim alleging that he had made a protected disclosure. 

Employment Tribunal (ET)

The ET had to decide whether the complaint made by the Claimant amounted to a protected disclosure.

The ET dismissed the whistleblowing claim, among other reasons, on the grounds that his disclosure was not made in the public interest. On the contrary, his concern was only that false rumours had been made about him, and the effect of those rumours on him, and he had not argued that there was a wider public interest.

EAT

Dismissing the Claimant’s appeal, the EAT ruled that the ET had been entitled to hold that the Claimant’s only concern was about false rumours made about him and he had no subjective belief in the public interest.

CA

The Court overturned the EAT’s decision.

The ET should have directly asked the Claimant whether he believed he was acting in the public interest. As he was unrepresented, the ET was under an obligation to ensure he had a proper opportunity to explain his case. The Claimant’s evidence had established his motive (that is, to clear his name and restore his reputation), but not his subjective belief as to public interest. However, motive and genuine belief in public interest are not the same thing. Although the Claimant did not say anything about public interest, which went against him, it did not dispose of the point. As the evidence had not covered the critical point, there was no alternative but to remit the claim to the ET to hear evidence from the Claimant.

Ibrahim v HCA International Ltd [2019] EWCA Civ 2007 

Comment 

The Court of Appeal allowed the appeal on the ground that the Claimant should have been asked whether he believed he was acting in the public interest in making his allegation about the false rumours. However, it also suggested that it was ‘counter intuitive’ to argue that defamation claims had a public interest element. Although the Court did not rule out these types of claims altogether, it is likely to be difficult for workers to claim a public interest if their motive is to clear their name. 

Warning: this news item is not a substitute for legal advice. The information may be incorrect or out of date and does not constitute a definitive or complete statement of the law. This news item is not intended to constitute legal advice in any specific situation. Readers should obtain legal advice and not rely on the information in this article.