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Whistleblowing protection: when will a complaint be protected as a qualifying disclosure?

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In order to be protected against detriment or dismissal under whistleblowing law, a worker must have made a “qualifying disclosure”. A qualifying disclosure is any disclosure of information which:

• is, in the reasonable belief of the worker, made in the public interest; and

• tends to show that one or more of six specified types of wrongdoing has taken place, is taking place or is likely to take place. The six specified types of wrongdoing include a “failure to comply with a legal obligation”.

As long as the worker reasonably believes that the wrongdoing has occurred it does not matter if that belief later turns out to be wrong.

In Elysium Healthcare No 2 Ltd v Ogunlami UKEAT/0116/18 the Employment Appeal Tribunal (EAT) took a look at the ingredients of this test.

Mr Ogunlami was employed by Elysium as a health care assistant, working on one of its specialist programmes for patients detained under the Mental Health Act. He brought a whistleblowing claim, arguing that he had suffered a number of detriments as a result of having made a series of complaints regarding his supervisor, Ms Miles. The complaints concerned Ms Miles’ conduct in relation to certain patients.

Mr Ogunlami was successful in his claim at first instance. Elysium appealed to the EAT, arguing that the complaints did not amount to qualifying disclosures because Mr Ogunlami had not provided sufficient evidence that his complaints tended to show a breach of a legal obligation. In addition, Elysium argued that the public interest element of the test was not satisfied.

The EAT dismissed Elysium’s appeal. In the EAT’s view, it was apparent that Mr Ogunlami’s complaint amounted to an allegation that Ms Miles was guilty of a breach of a legal obligation – notwithstanding the fact that he had not said this in express terms. It was clear on the evidence that he viewed her behaviour as more than morally wrong or contrary to guidance. He had referred to Ms Miles’ conduct as being a disciplinary matter, a breach of company policy and a safeguarding issue. Not all breaches of policy will amount to breach of an employment contract but, in the EAT’s view, typically they will do so. The evidence was therefore enough to establish a belief on the part of Mr Ogunlami that the information in his complaints tended to show a breach of a legal obligation, namely the breach of an employment contract. The EAT was also concerned to emphasise that whistleblowers should not be expected to use precise legal terminology.

Looking at the public interest element of the test, the EAT was again unpersuaded by Elysium’s arguments. It determined that the mistreatment of vulnerable members of society readily satisfied the public interest requirement.

The public interest test was introduced in order to address the perceived problem of employees bringing whistleblowing claims based on alleged breaches of their own employment terms. The precise boundaries of the public interest test continue to develop. This case is an important reminder that anything capable of amounting to a breach of an employment contract, which also has a public interest element, may still amount to a qualifying disclosure. Where there is the potential for this protection to be triggered it will be important for employers to be particularly careful about how they manage and treat employees who have blown the whistle.