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Protected Disclosures

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Can an allegation amount to a protected disclosure?

Yes, held the Court of Appeal in Kilraine v London Borough of Wandsworth.

For a disclosure to be protected, it must contain information which, in the reasonable belief of the worker making the disclosure, is in the public interest and tends to show one of the factors listed in the Employment Rights Act 1996, section 43B(1).

In Kilraine, the Court of Appeal considered the knotty issue of what constitutes ‘information’. 

Although the Court declined to give comprehensive guidance on how to spot whether a disclosure is a disclosure of information, there are a few important points to note from the judgment.

First, ‘allegation’ and ‘information’ are not mutually exclusive terms. The Court supported the EAT’s comments that an allegation can contain information.

Secondly, words that are too general and devoid of factual content capable of tending to show one of the factors listed in section 43B(1) will not amount to information.

Thirdly, words that would otherwise fall short can be boosted by context or surrounding communications. The words “You have failed to comply with health and safety requirements” fall short on their own, but may constitute information if accompanied by a gesture of pointing at sharps lying on the hospital ward floor.

Finally, determination of whether a disclosure gives information is a matter for objective analysis, subject to evaluative judgment by the tribunal in light of all the circumstances.

Thanks to Jason Braier of Field Court Chambers for preparing this case summary.