Discrimination: Burden of Proof
Court of Appeal overturns EAT burden of proof decision.
Published 8 February 2019
To be protected by the whistleblowing legislation, the worker must have made a “qualifying disclosure”. This is 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 a list of acts of wrongdoing, including that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.
Mr Ibrahim was an interpreter in a private hospital. He asked his manager to investigate rumours circulating among patients and their families that he was responsible for breaches of patient confidentiality. He sent an email saying that he wanted to “clear his name”, and that a colleague had been “slandering me to my colleagues”. After investigation, his complaint was rejected. He was later dismissed, and claimed (among other things) that his complaint had been a whistleblowing allegation, and that he had been dismissed for having made the complaint.
The employment tribunal held that a complaint about false rumours being spread was not a disclosure of information that tends to show breach of a legal obligation. It also held that Mr Ibrahim’s complaint was not one that in his “reasonable belief…was made in the public interest”: Mr Ibrahim had made the complaint with a view to clearing his name and re-establishing his reputation. For both these reasons, Mr Ibrahim was not protected by the whistleblowing legislation.
Mr Ibrahim appealed to the EAT. The EAT disagreed with the employment tribunal’s view that the complaint did not tend to show breach of a legal obligation. It held that the wording of the whistleblowing legislation is broad enough to include allegations about breach of tortious duties, such as defamation and breach of statutory duties. Mr Ibrahim’s complaint of damaging false rumours about him that he had breached patient confidentiality was, the EAT said, clearly an allegation that he is being defamed.
However, the EAT held that the complaint was not a qualifying disclosure. The tribunal had made a finding of fact that Mr Ibrahim’s concern had only been that false rumours had been made about him, and that he did not have a subjective belief in the public interest element of his disclosure. The EAT therefore agreed with the tribunal that Mr Ibrahim was not protected as a whistleblower, because he had not believed that his complaint was made in the public interest.
As is shown by this case, the whistleblowing legislation potentially gives workers protection in relation to a broad spectrum of complaints, including complaints about what other employees are saying about them.
However, the worker also has to believe reasonably that their disclosure is in the "public interest" and this may prove an additional safeguard against complaints which are purely personal in nature.
In practice, while any self interest in making a disclosure should be documented, this should not prevent an employer from dealing with the substance of the disclosure in an appropriate way. The reality is that it will usually be difficult to show a worker acted exclusively in their own interest and more likely it will be the case that an employee acts partly in their own interest but will also be able to say there is an element of public interest in their actions (in which case they will be protected).