12th November 2009
A recent case has clarified that in order for a disclosure to be a protected disclosure for the purposes of whistleblowing legislation, information must actually be disclosed – it is not sufficient to simply make an allegation.
In the case of Cavendish Munro Professional Risks Management Ltd v. Geduld, the EAT held that in order to make a protected disclosure, the whistleblower must disclose factual information about the relevant situation. The making of an allegation in circumstances where information is not disclosed is not sufficient.
The distinction between making an allegation and disclosing facts is a subtle one. The EAT illustrated the distinction with the two following statements:
- ‘The hospital wards have not been cleaned for the past two weeks’ discloses information. This would therefore amount to a qualifying disclosure for the purposes of whistleblowing legislation.
- You are not complying with Health and Safety legislation’ is an allegation. Because no factual information is disclosed this would not amount to a qualifying disclosure.
According to the judgment there is a distinction between ‘disclosing’ and ‘communicating’ information (even if the disclosure is made to a person already aware of information).
Whilst employers will need to analyse disclosures very carefully to establish whether information is in fact disclosed, the judgment is likely to assist employers defending whistleblowing claims in which employees make insufficiently particularised allegations. For example, many employees are reluctant to make detailed factual allegations, simply because they feel that they may be limiting their position going forward by doing so. Using the above statements to illustrate the point; employees will often go no further than saying “You are in breach of Health and Safety legislation” rather than adding “because the wards have not been cleaned for the last two weeks”.
In the above case a solicitor’s letter sent on behalf of the employee contained allegations which resulted in the employee’s dismissal. However, the letter did not contain sufficient factual information surrounding the allegations and therefore did not qualify as a ‘protected disclosure’ under whistleblowing legislation.