Alleged information

When blowing the whistle, workers have to ensure that they make a disclosure of “information”. In Kilraine v London Borough of Wandsworth, the Court of Appeal held that “information” could include “allegations” but they, in turn, had to be sufficiently factual to support one or more of the factors listed in section 43B(1) of the Employment Rights Act (ERA) 1996.

Basic facts

Ms Kilraine, who worked for Wandsworth education authority, made a number of alleged protected disclosures over the period from 2005 to 2010. After making the last disclosure, she was suspended in September 2010 on full pay pending a disciplinary investigation on charges that she had made unfounded allegations against colleagues on a number of occasions.

Following a major reduction in government funding for education initiatives in early 2011, she was dismissed on grounds of redundancy in September that year. She brought claims of automatic unfair dismissal for blowing the whistle, among other things, which included claims of bullying and harassment and of being side-lined by her manager who she claimed had also failed to support her when she reported a safeguarding issue.

Relevant law

Section 43B(1) ERA states that, for a disclosure to be protected, it must involve a disclosure of “information” which “in the reasonable belief of the worker making the disclosure”, tends to show: a) that a criminal offence has been committed; or b} that a person has failed to comply with a legal obligation; or c), that there has been a miscarriage of justice; or d} that someone’s health or safety is in danger; or e) that the environment is in danger. 

Section 43F(b)(ii) states that the worker has to “reasonably believe” that “the information disclosed, and any allegation within it, are substantially true”.

Decision of lower courts

The tribunal dismissed Ms Kilraine’s claims on the basis that she had not disclosed any “information” but instead had made a series of allegations. Nor was she able to show a failure to comply with a legal obligation.

Criticising the tribunal for introducing a dichotomy between "information" and "allegation" which was not in the statute itself, the EAT held that the question to be answered was simply whether the claimant had made a disclosure of information. As section 43F made clear, it was possible for information to contain allegations within it. However, the EAT also dismissed her claims on the ground that they were far too vague.

Decision of Court of Appeal

Dismissing the appeal, the Court held that courts should not introduce a “rigid dichotomy” between "information" on the one hand and "allegations" on the other. It followed that a statement could potentially be characterised as an allegation, but that would depend on whether it fell within the language used in section 43B(1).

For instance, a statement which took the form “You are not complying with Health and Safety requirements” would not satisfy the provision as it was too general and empty of factual content. However, if the worker pointed to sharps left lying around on a ward whilst making the statement, that would constitute a qualifying disclosure in that context. Ultimately, it was for tribunals to decide in the light of all the facts of the case whether the statement was sufficiently factual, and whether it had been put in context, if it was a general statement.

As Ms Kilraine’s complaints lacked factual content or any relevant context, they failed to satisfy the wording in section 43B(1).