There has been something of a frisson in the world of employment law with the judgment of the Employment Appeal Tribunal (EAT) in the case of Kilraine v London Borough of Wandsworth  UKEAT/0260/15/JOJ (26 January 2016). The judgment of the President of the EAT, Mr Justice Langstaff, analysed what “information” means in the context of a whistleblowing case, an issue that has vexed lawyers and employment tribunals for years.
Confidence & public interest
The law of confidence and the concomitant defence of public interest has historically governed disclosures made by employees that have disclosed wrong-doing; Initial Services v Putterill  1 QB 396,  3 All ER 145 being one of Lord Denning’s classic expositions on this subject, in which the Court of Appeal held that exceptions to the implied obligation of a servant not to disclose information or documents received in confidence extended to any misconduct of such a nature that it ought in the public interest to be disclosed to one who had a proper interest to receive it.
It was only until Parliament intervened in this area in the form of the Public Interest Disclosure Act 1998 (PIDA 1998) that the law of whistleblowing within the employment context found its statutory foundations. The effect of PIDA 1998 was to make certain amendments to the Employment Rights Act 1996 (ERA 1996) and to create protection for workers from dismissal or action short of dismissal because that worker had made what is known as a “protected disclosure”.
For years tribunals have been tasked with considering whistleblowing cases under the broadly drawn s 43B(1)(b) of ERA 1996, namely cases in which it is alleged that a person has failed, is likely to fail or will fail to comply with any legal obligation to which he is subject. There was a tendency on the part of claimant employees who did not have the requisite length of service to bring a claim for unfair dismissal, or who wished to circumvent the statutory limits on compensation for unfair dismissal, to seek to bring a claim for s 47B (whistleblowing detriment) and/or s 103A (whistleblowing unfair dismissal) in order to bolster their claim.
What was often a relatively innocuous complaint or grievance about something to which the employee objected—and which had occurred in the normal course of the employment relationship—would be converted into a qualifying protected disclosure on the basis that the complaint in question engaged a “legal obligation”, namely the contractual relationship of trust and confidence between the parties that underwrites any contract of employment.
It is fair to say that, in practice, this could lead to counter-intuitive results. A relatively innocuous complaint, for example, would be relied upon to transform a routine redundancy dismissal into one arguably based upon the employee’s qualifying protected disclosure, or a disciplinary process that sought to tackle persistent lateness would be alleged to be a detriment on the ground of a preceding complaint about being rigorously performance managed.
In Parkins v Sodexho  IRLR 109,  All ER (D) 377 (Jun) the tribunal gave expression to reasonable doubts that such cases did not fall within the spirit of the statutory scheme. Mr Parkins alleged that he was dismissed after complaining about lack of adequate on-site supervision, which, he maintained, gave rise to a breach of contract and therefore involved a protected disclosure within the meaning of s 43B(1)(b).
The tribunal, in directly addressing the spirit of the statutory provisons, held that: “While everybody is obliged to comply with contracts of employment, we do not consider that an allegation of breach of an employment contract in relation to the performance of duties comes within the letter or spirit of the statutory provisions.”
The EAT, in overruling the tribunal on this issue, held that the s 43B(1)(b) was broadly drawn and must be construed accordingly. Complaints about actual or perceived breaches of the employee’s contract of employment therefore were caught by s 43B(1)(b).
Public interest test
Parliament has since intervened again, in the form of the Enterprise and Regulatory Reform Act 2013 (ERRA 2013), which among other things, amends s 43B(1) of ERA 1996 to introduce a public interest test.
A “qualifying protected disclosure” under s 43B(1) now means “any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and , tends to show one or more of the following:
- that a criminal offence has been committed, is being committed or is likely to be committed,
- that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
- that a miscarriage of justice has occurred, is occurring or is likely to occur,
- that the health or safety of any individual has been, is being or is likely to be endangered,
- that the environment has been, is being or is likely to be damaged, or
- that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed”.
Thus, while it may be desirable for the public interest test to dispense with insignificant gripes from employees, “public interest” is still defined in terms of what is in the reasonable belief of the worker and is not itself defined in ERA 1996. The explanatory notes which accompanied the ERRA 2013 Bill when it was introduced in Parliament state that: “The amendment made by this clause means that public interest disclosures must in future satisfy a public interest test and excludes those which can be characterised as being of a personal rather public interest. For example, if a worker does not receive the correct amount of holiday pay (which may be a breach of the terms of his contract of employment), this is a matter of personal rather than wider interest.”
Yet it remains the case that the personal can readily be made political, for example, if the worker in question complains not only that he has not received the correct amount of holiday pay but that his employer, a UK plc, seeks to escape its obligations to pay holiday pay as a matter of policy, then it is difficult to disagree that the worker in question does not satisfy the low test of having a reasonable belief that his qualifying protected disclosure is in the wider public interest. It follows that what might be called the Parkins v Sodexho problem has not been entirely eradicated by the introduction of the public interest test.
Cavendish Munro: Information v allegation
In Cavendish Munro Professional Risks Management Ltd v Geduld  IRLR 38,  All ER (D) 15 (Nov), Slade J held that a letter that had been written by the claimant’s solicitors did not convey any “information” as required by s 43B of ERA 1996, and instead comprised a mere allegation. Slade J’s analysis was based on two footings.
First, s 43F recognises a distinction between “information” and “allegation”, in that s 43G(1)(b)(ii) (“Disclosure to prescribed person”) provides that the worker must reasonably believe “that the information dislosed, and any allegation contained in it , are substantially true” [authors’ emphasis]. In Slade J’s judgment: “It is instructive that those two terms are treated differently and can therefore be intended to have different meanings” [para 20].
In developing Slade J’s analysis, it may be worth highlighting that the structure of s 43F(1)(b)(ii) suggests that “information” takes primacy over “allegation(s)” and that ERA 1996 thereby envisages that an allegation would be derivative of and subsidiary to the provision of information.
“The law of confidence & the concomitant defence of public interest has historically governed disclosures made by employees that have disclosed wrong-doing”
Second, Slade J considered that the ordinary meaning of “information” is conveying facts, and therefore—in her example—a worker who merely asserted that “The wards have not been cleaned for the past two weeks” would be providing information and therefore fall within the Act, whereas someone who merely asserted that “You are not complying with Health and Safety requirements” would be making a mere allegation and therefore would not invite the protections of the whistleblowing legislation.
Cavendish Munro thus provided a dichotomy that was oft relied upon by employers who sought to argue that there had been a mere allegation, and no disclosure of information as required by the Act. Cavendish Munro was applied in the following cases.
In Goode v Marks & Spencer plc UKEAT/0442/09 Mr Goode brought proceedings for unfair and wrongful dismissal and claimed that his dismissal by Marks & Spencer (M&S) was automatically unfair, on the basis that his complaints to his line manager and an e-mail to The Times about M&S’s alterations to its discretionary redundancy package were protected disclosures. Goode argued that he had disclosed a proposed breach of legal obligation in that M&S was proposing to make an unlawful variation to employee’s contractual terms by altering its enhanced discretionary redundancy scheme without adequate consultation.
The employment tribunal dismissed all of Goode’s claims. It found that neither Goode’s comments to his line manager or e-mail to The Times amounted to protected disclosures under ERA 1996.
The EAT—Wilkie J sitting with two lay members—agreed and dismissed Goode’s appeal. It held that: “In our judgment the employment tribunal was entitled to conclude that what was disclosed…was, at its highest, only ‘information’ in the sense of being a statement of his state of mind, namely that he was ‘disgusted’ with the proposals which had been put forward on 11 July and communicated to him on 30 July. Insofar as one can go further and imply, as embedded within his disclosure…there is nothing…which anyone could reasonably believe tended to show that it was likely that the respondent would fail to comply with any legal obligation in respect of the enhanced redundancy payment scheme. All the document does is put forward a proposal for changing the terms of a discretionary scheme for consultation with the appropriate representative staff bodies” [paras 36 & 37].
In Royal Cornwall Hospitals NHS Trust v Watkinson UKEAT/0378/10/DM, the EAT held that the claimant had made a disclosure of information when he informed the NHS Trust that he had obtained counsel’s advice to the effect that the Trust would be acting unlawfully if they did not consult on proposed changes to services. The EAT found that the claimant’s disclosure “was giving information about what had to be done” by the Trust and the Primary Care Trust in order to comply with their legal obligation to consult.”
Smith v London Metropolitan University  IRLR 884,  All ER (D) 19 (Sep) held that a university lecturer had not made protected disclosures under s 47 B (1) of ERA 1996 (upholding a finding of the tribunal) because grievances that she had raised about being asked for perform duties outside the scope of her contract were, in the tribunal’s and the EAT’s opinion, actually duties she was obliged to perform and thus disclosed no breach of a legal obligation.
Western Union Payment Services UK Ltd v Anastasiou UKEAT/0135/13/LA is one of the first cases where we see the EAT starting to recognise that the terminology used in these cases might need re-evaluating: “We follow and apply the approach adopted by the EAT in Cavendish , Goode and Smith : s 43B of ERA 1996 requires the disclosure to be one ‘of information’, not merely the making of an allegation or statement of position. That said, the distinction can be a fine one to draw and one can envisage circumstances in which the statement of a position could involve the disclosure of information, and vice versa. The assessment as to whether there has been a disclosure of information in a particular case will always be fact-sensitive.”
What can be seen from the above cases is that there have been different applications of the position stated in Cavendish Munro ; Goode focuses on the distinction between views and facts, Royal Cornwall looks at the specificity of the information, Smith simply considers whether the information disclosed a breach of a legal obligation, and Western Union takes a slightly more nuanced view and accepts that information could be said to reside within opinions.
In Kilraine , Langstaff J sought to emphasise the fact-sensitivity of the law in this area. He held that there is no ready-made distinction between “information”, on the one hand, and a mere “allegation”, on the other, and further; that the sole question to ask is whether the disclosure itself is a disclosure of “information”: “I would caution some care in the application of the principle arising out of Cavendish Munro . The particular purported disclosure that the Appeal Tribunal had to consider in that case is set out at para 6. It was in a letter from the claimant’s solicitors to her employer. On any fair reading there is nothing in it that could be taken as providing information. 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.”
It is hard to disagree with this. Although Cavendish Munro was surely correct in the distinction that it was seeking to make between information on the one hand and mere statements signifying nothing on the other, the information/allegation, “either/or” filter that it proposes rests on faulty logic. To say that ERA 1996 distinguishes between the words “information” and “allegation” is correct, but not in any definitive sense. The Act does not entail that “allegation” cannot also be “information”.
Therefore the distinction made in s 43F(1)(b)(ii) of ERA 1996, as emphasised in Slade J’s judgment in Cavendish (and which Langstaff J does not consider in his judgment) is merely a reflection of the possibility that the “information” in question might itself contain “allegations”.
This is of course an uncontroversial semantic distinction. An allegation is not ipso facto incapable of conveying information simply by virtue of its status as an allegation, and nothing in s 43F of ERA 1996 (or anywhere else) implies that such is the case. As a matter of ordinary language, an allegation must be that such-and-such is the case, whatever that may be, is capable of providing information; conversely, it remains possible that the allegation in question may be so vague and indeterminate that it simply cannot reasonably be said to convey any information at all.
As the EAT held in Western Union , the fact-sensitive nature of this area is such that a priori rules on what is and is not “information” within ERA 1996 are unavailable. What is certain, following Kilraine, is that the allegation versus information distinction will not provide the answer.
Athelstane Aamodt & Michael Paulin, barristers, 4-5 Gray’s Inn Chambers (www.4-5.co.uk )
Athelstane Aamodt & Michael Paulin consider the question of informative & uninformative whistleblowing allegations