In the recent case of Kealy v Westfield Community Development Association the Employment Appeal Tribunal overturned the tribunal’s finding that the claimant had not been subjected to detriments on grounds of whistleblowing.
A reminder of the different steps involved in establishing a protected disclosure in whistleblowing claims
In the recent case of Kealy v Westfield Community Development Association the Employment Appeal Tribunal overturned the tribunal’s finding that the claimant had not been subjected to detriments on grounds of whistleblowing.
The Case
In reaching its judgment the EAT was critical of the tribunal’s approach to establishing whether there had been a protected disclosure and provided a useful reminder of the steps involved in establishing detriment on grounds of whistleblowing. The EAT provided the following roadmap:
- A qualifying disclosure must be found to have taken place. This is a disclosure of information which the worker must reasonably believe is made in the public interest. The worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) to (f) of Section 43B Employment Rights Act 1996 and that belief must be reasonably held.
- Having established that the disclosure is a qualifying disclosure it must also be shown to be a protected disclosure. If the disclosure is made to the worker’s employer then this will be sufficient for it to be protected. If it is made more widely to responsible persons, Government Ministers or prescribed persons then it will also be protected provided that the worker reasonably believes that the wrongdoing falls within the remit of the person in question and, in relation to disclosure to prescribed persons, that the information disclosed and any allegation contained in it are substantially true.
- If a qualifying disclosure is made externally to some other person or persons then establishing that the disclosure is not only qualifying but also protected involves jumping through additional hoops. Section 43G Employment Rights Act 1996 adds a number of requirements in respect of these disclosures including that: the worker believes that the information disclosed and any allegation are substantially true, that disclosure is not made for purposes of personal gain; that the worker has previously disclosed the same information to their employer or a prescribed person or reasonably believes either that they will be subjected to a detriment if they make a disclosure in this way or that material evidence will be concealed or destroyed if it is. In all the circumstances of the case, it must also be reasonable for the worker to make the disclosure in this way.
What Can We Learn?
This case is a useful reminder of the steps an individual has to take to be protected under whistleblowing legislation – they cannot just go straight to the press or social media but have to follow the correct stages.