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Kilraine v Wandsworth LBC: The Final Whistle on the Geldud Distinction?

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About The Author

Keir Baker (Editor in Chief)

Keir is a recent law graduate from Selwyn College, Cambridge University and a Future Trainee Solicitor at Morgan Lewis & Bockius LLP. His main areas of interest are Employment and Discrimination law. Outside the realm of law, Keir is an accomplished goalkeeper in both football and hockey, as well as a keen actor and pianist. He is a long-suffering supporter of Middlesbrough FC.

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The employee who, in the public interest, has the independence of judgement and the personal courage to challenge malpractice or illegality is a kind of public hero.

Fuad Alakbarov

Whistleblowers have made their mark over the years. The history books are unlikely to forget the activities of Edward Snowden – who leaked classified information on the activities of the US’s National Security Agency – or the claims made in Peter Wright’s book Spycatcher that the UK secret services had attempted to overthrow Harold Wilson.

However, the majority of whistleblowers do not gain globally prominence, because whistleblowing can occur when any worker draws attention to the illegal or immoral activities of their employer. Such disclosures are vital sources of information for the authorities that regulate private companies and public services, but can also lead to the person responsible being vilified as a traitor or a ‘snitch’ by their employers and colleagues.

With this in mind, the law has intervened to ensure those who make the decision to ‘blow the whistle’ on their employers are afforded certain protections. However, this area of the law lacks clarity, with a line of case law causing confusion over exactly what a worker must disclose, and how they must disclose it, in order to secure the statutory protection.

This article examines the latest chapter in this saga. On 13 June 2018, the Court of Appeal – comprising Kitchen LJ and Sales LJ – heard argument on the case of Kilraine v Wandsworth LBC, in what represents a valuable opportunity to provide clear guidance on this issue. In essence, it is a chance to remove a complicated and blurred distinction between allegation and information that has created an unnecessary hurdle for workers seeking to rely on the statutory protection offered to whistleblowers.

The Law on Whistleblowing

An Overview

The Public Interest Disclosure Act 1998 (PIDA 1998) amended the Employment Rights Act 1996 (ERA 1996) to introduce protection for workers who “blow the whistle” on the wrongdoing of their employers. Before the introduction of PIDA 1998, whistleblowers were afforded no direct protection, leaving their employers free to subject them to detriment and victimisation.

Now some whistleblowers who are dismissed for their disclosures are automatically deemed to have been unfairly dismissed. They need not show they have worked for their employer for the qualifying period required for the vast majority of other ‘normal’ unfair dismissal claim (two years, as per Section 108(1) of the ERA 1996) and can bypass the statutory cap on the compensation that can be awarded.

Though the PIDA 1998 was passed by Parliament with the express aim of introducing protection for whistleblowers, it is important to note that the terms ‘whistleblower’ or ‘whistleblowing’ do not actually appear in statute. Instead, Section 47B(1) of the ERA 1996 states that:

[A] worker has the right not to be subjected to any detriment by… his employer done on the ground that the worker has made a “protected disclosure”.

Thus, to access the statutory protection available to whistleblowers, a worker must show that they have made a protected disclosure, and that their employer subjected them to a detriment – such as being dismissed, demoted, bullied or denied a certain benefit – because of it.

Protected Disclosures

Not all disclosures made by workers are protected disclosures under Section 47B(1) of the ERA 1996. In order to qualify for protection, the disclosure must have been made to the correct recipient. Such correct recipients include the worker’s employer, legal advisors, Ministers or other individuals prescribed in regulations made by the Secretary of State.

Furthermore, a disclosure will only qualify for protection if its content meets the statutory requirements. Section 43B(1) of the ERA 1996 states that a qualifying disclosure must contain ‘information which, in the reasonable belief of the worker’ tends to show that one of the following failures are occurring:

  • A criminal offence has been committed, is being committed or is likely to be committed;
  • A person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;
  • A miscarriage of justice has occurred, is occurring or is likely to occur;
  • The health or safety of any individual has been, is being or is likely to be endangered;
  • The environment has been, is being or is likely to be damaged; or
  • Any of the listed matters is or has been occurring is being, or is likely to be, deliberately concealed.

The Enterprise and Regulatory Reform Act 2013 added a further condition to Section 43B(1) of the ERA 1996: the worker must also reasonably believe that the disclosure is in the public interest. In Chesterton Global Limited v Nurmohamed [2017], the Court of Appeal confirmed that this is a question of fact tested on the available evidence. In that case, it was accepted that 100 senior managers of the employer was a sufficient proportion of the public to fulfil the requirement.

A disclosure can be made in writing or orally. The information disclosed can be new information, or – as Section 43L(3) of the ERA 1996 confirms – it can involve drawing the attention of the person to whom it is to information about which they were already aware. This ensures workers are protected when they make disclosures about failures that their employers may have been pretending not to know about.

Kilraine v Wandsworth LBC

The Facts

Mrs Kilraine (K) was an employee of the London Borough of Wandsworth’s education authority. She made four different disclosures about various matters occurring at her workplace. Her first disclosure was that she had been discriminated against by Ofsted inspectors on account of her race and religion. Her second disclosure was that there had been a health and safety issue in a classroom. Her third and fourth disclosures were that two of her colleagues were failing to comply with their obligations to protect her from incidents of inappropriate behaviour and to provide support when she raised a safeguarding issue.

After the final disclosure, K was suspended, pending a disciplinary investigation into whether she was making baseless allegations against her colleagues. This suspension was maintained for some time, until she was subsequently dismissed, purportedly on the grounds of redundancy.

In light of this, K sought to assert her statutory protections as a whistleblower, arguing that she had suffered detriment and dismissal as a result of protected disclosures made during her employment.

The Decisions

The Employment Tribunal (ET) held that K’s first disclosure was not a protected disclosure because it had not been made to the correct person. The ET also dismissed K’s second disclosure, on the grounds that the claims had not be brought within the three month time limit. The Employment Appeals Tribunal (EAT) – comprising Langstaff J sitting alone – in Kilraine v Wandsworth LBC [2016] upheld both these conclusions.

K’s other two disclosures were similarly dismissed by the ET. It applied the principle laid down by the EAT – Slade J presiding – in Cavendish Munro v Geduld [2009], in which a crucial distinction was drawn between making an allegation and disclosing information. This principle holds that a mere allegation cannot qualify as a protected disclosure.

To explain this dichotomy, the EAT in Geduld [2009] outlined an example that concerned a hypothetical worker’s attempts to communicate information about the state of a hospital:

Communicating ‘information’ would be “the wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around". Contrasted with that would be a statement that "you are not complying with Health and Safety requirements"… this would be an allegation not information.

Applying the dichotomy from Geduld [2009], the ET held that – because K’s disclosures that her colleagues were failing to comply with their obligations were assertions not supported by evidence – they amounted to allegations rather than specific disclosures of information. In the view of the ET, this meant they could not constitute protected disclosures.

The EAT in Kilraine [2016] also upheld this conclusion. However, in doing so, Langstaff J made some crucial comments about the way in which the ET had applied the Geduld [2009] principle that added to the confusion and criticism that has surrounded the dichotomy since its introduction.

The Geduld Distinction

Origins

The distinction between information and allegation articulated by the EAT in Geduld [2009] was derived from two sources. Firstly, Section 43F(1) of the ERA 1996 – which governs when a worker will be successful in attempting to make a protected disclosure to a person prescribed by the Secretary of State – requires that the worker:

[R]easonably believes… that information disclosed, and any allegation contained in it, are substantially true.

Secondly, Section 4(1)(b)(d) of the Sex Discrimination Act 1975 – now superseded by the Equality Act 2010 – described discrimination by way of victimisation as occurring when an employer treated a person less favourably because that person had either ‘given information’ about or in connection with proceedings brought under the SDA 1975, or had ‘alleged’ the employer had committed an act contrary to SDA 1975.

In the view of the EAT in Geduld [2009], it was ‘instructive’ that in two pieces of legislation, Parliament had appeared to articulate two separate concepts. It followed that the two terms could ‘therefore be regarded as intended to have different meanings’.

Subsequent Application

This dichotomy between information and allegations has been strictly applied by ETs in a number of subsequent cases, including the decision of the ET in K’s case. As such, the current grain of authority appears to suggest that allegations and disclosures of information are mutually exclusive concepts.

Furthermore, the thinking underpinning the dichotomy was also applied by the EAT – Slade J presiding – in Smith v London Metropolitan University [2011] to separate the concepts of a worker disclosing information, which could receive protection, and a worker raising a grievance, which could not.

Langstaff J on the Geldud Principle

Despite the dichotomy in Geduld [2009] appearing increasingly authoritative, Langstaff J in Kilraine [2016] noted that he ‘would caution some care in the application of the principle’ from Geduld [2009]. In his view, the facts in Geduld [2009] were unusually clear-cut, such that ‘on any fair reading’ of the purported protected disclosure in question, there was ‘nothing in it that could be taken as providing information’.

In most other cases, however, Langstaff J observed that this is rarely the case. He contended that the question of whether something constitutes an allegation or a disclosure of information is an inherently complex one, such that:

[I]t 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’.

In light of this, Langstaff J in Kilraine [2016] advocated a new approach. He felt it was wrong to treat the dichotomy from Geduld [2009] as conclusive, and instead argued that focus should be placed on the contents of the ERA 1996, which simply requires an investigation into whether the worker’s disclosure contained information showing, or tending to show, that one of the relevant failings listed in Section 43B(1) of the ERA 1996 was occurring.

In short, Langstaff J’s approach would mean ETs would no longer have to determine whether a statement is an allegation or a disclosure of information. No matter what form the worker’s statement took, the ET would exclusively be examining if it conveys specific facts which relate to one of the listed failures.

Applying the New Approach: An Example

The way in which this new approach functions is well-demonstrated by Langstaff J’s approach to the third disclosure in Kilraine [2016]. Here, K had written a letter to her superior in which she said:

Since the end of last term, there have been numerous incidents of inappropriate behaviour towards me, including repeated sidelining, and all of which I have documented.

K argued that this constituted a protected disclosure, because it provided information that inappropriate behaviour had occurred. This argument was rejected by the ET on the grounds that – according to the principle in Geduld [2009] – it was a mere allegation rather than a disclosure of information. Langstaff J in Kilraine [2016] accepted this point, noting that:

If one takes away the word "inappropriate" from the highlighted section, it says nothing that is at all specific. It does not sensibly convey any information at all. On this basis, I consider the Employment Tribunal was justified in concluding as it did.

However, Langstaff J used this disclosure as a way of explaining his new approach. He pointed out that a careful application of the words of the ERA 1996 would have also allowed for the ET to dismiss the argument that this disclosure constituted a protected disclosure: the phrase ‘inappropriate behaviour’ is too vague to show that a failure to comply with any of obligations or other matters set out in Section 43B(1) of the ERA 1996 has occurred.

Analysis of the Decision

The new approach articulated by Langstaff J in Kilraine [2016] is a welcome one that, it is hoped, will be given full and proper consideration by the Court of Appeal. For one thing, it appears to be more faithful to the regime set out by Parliament in the ERA 1996. This is in stark contrast to the approach articulated in Geduld [2009], which has its origins in unsubstantiated inferences from the wording of Section 43F(1) of the ERA 1996 and the SDA 1975.

Furthermore, Langstaff J was correct to assert that the dichotomy from Geduld [2009] is a false one. It fails to account for further potential categories of statement that might be made by workers, such as an expression of an opinion on an employer’s activities. Moreover, as the EAT – HHJ Eady QC presiding – explained in Western Union v Anastasiou [2014], the distinction between an allegation and a disclosure of information can be ‘a fine one’, such that it is possible to:

[E]nvisage circumstances in which the statement of a position could involve the disclosure of information, and vice versa.

Langstaff J’s approach also appreciates the fact that Parliament did not necessarily envisage that all protected disclosures would be detailed accounts of failings that directly point towards the relevant problem. This is evidenced by Section 43L(3) of the ERA 1996, and reinforced by an argument advanced by Martin Fodder:

[D]epending… on the circumstances, an allegation that does not on face of it directly refer to or contain (specific) facts may nevertheless draw the attention of the recipient to facts by direct or indirect reference.

More critically, the approach in Geduld [2009] also seems to introduce an obligation on ETs to carry out an investigation into the form of disclosure that the worker has made, rather than focusing its substance. This is concerning: one of the main reasons for granting protection for whistleblowers is that they have sought to ensure that information about misconduct or failings by their employer is made known to the public. This act is often contrary to their own personal interests, and may involve a degree of bravery on their part. Indeed, as Ellie Ismaili has written for Keep Calm Talk Law:

While some welcome whistle-blowers for bringing their employers’ immoral or illegal behaviour into the public eye, others view the same act – particularly in the context of the public sector – as displaying a lack of loyalty or even patriotism.

The act of whistleblowing is thus rarely taken lightly. Therefore, the principle in Geduld [2009], which introduces something akin to an additional form requirement by the principle, adds an extra unnecessary hurdle that could inhibit the efforts of future whistleblowers to gain protection, and which could – in turn – deter others from carrying out an act that can be of great benefit to society.

Furthermore, in this respect, the decision in Geduld [2009] also appears to go against the grain of authority in this area of law: in other cases involving whistleblowing there have been attempts to remove other similar form requirements that could also constitute undesirable hurdles. For example, in Bolton School v Evans [2006], the EAT – Elias J presiding – concluded that a teacher who had broken into the school’s new computer systems in attempt to highlight its flaws did not need to:

[I]dentify any specific legal obligation [nor be] able to recite chapter and verse at the time. [It was sufficient that] it would have been obvious to all that the concern was that private information, and sensitive information about pupils, could get into the wrong hands, and it was appreciated that this could give rise to a potential legal liability.

Conclusion

K’s case represents a valuable opportunity for the Court of Appeal to do away with the confusion that has permeated this area of the law since the regrettably introduction of the allegation and information dichotomy by the decision in Geduld [2009].

Ultimately, when deciding whether a worker is deserving of whistleblower protection, whether the disclosure was made in the correct form should not be the point of an operative debate. It is a minor semantic point – one of form rather than substance – that distracts from the main substantive question: has the worker’s disclosure drawn attention to failings in the listed matters in Section 43B(1) of the ERA 1996?

Following argument on 13 June 2018, the Court of Appeal reserved judgment until a later date. It is hoped that this shows Kitchin LJ and Sales LJ’s acceptance of the need for a carefully reasoned decision that injects some much-needed clarity on this issue. Furthermore, it is hoped that it recognises that the approach articulated by Langstaff J in Kilraine [2016] is the best method by which to do this.

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Tagged: Employment Law, Justice

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