UK: Whistleblowing – a Protected Disclosure Must Include Specific Facts, but These Can be Deduced From the Context of an Allegation

Workers may be entitled to whistleblower protection in broader circumstances than employers expect. It is clear that specific facts must be conveyed (which the worker reasonably believes tend to show one of six specified types of wrongdoing). However, although a simple allegation that an employer has breached a particular legal obligation is not enough by itself, the Court of Appeal has confirmed that the context can be taken into account, including gestures communicated at the same time, in determining whether facts have also been conveyed.

The example given was a statement that the employer was breaching health and safety law while gesturing to sharps left on the floor of a hospital ward. The Court also confirmed that there is no clear divide between information (which can be protected) and allegations (which cannot) – sometimes a statement can be both.

Given the enhanced protection from detriment for whistleblowers, employers should err on the side of caution when considering if a disclosure could be protected. If so, extra care should be taken to avoid this influencing decisions in relation to the worker, and to ensure there is a paper trail evidencing lawful reasons for action taken. (Kilraine v London Borough of Wandsborough)

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