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Whistleblowing
A recent decision from the Employment Appeal Tribunal 'EAT' on whistleblowing by a Sales Manager of a medical equipment provider gives a welcome perspective on the need for whistleblowers to provide specific information on the matters that they are raising, rather than making generalised allegations; and the need to show their belief in the public interest in the disclosure was objectively reasonable.
Many whistleblowing claim fail at these hurdles, and this case is a useful illustration of the need not only to make a specific 'qualifying disclosure', but also to have a reasonable belief that it is in the public interest to make it. The EAT rejected the Claimant's appeal in Capeling v TFX Group Limited, link below.
The Claimant was dismissed at around 6 months service, and claimed her dismissal was due to three protected disclosures. The Tribunal found that the first disclosure, alleged to have been made in a telephone call, hadn't been made (the very existence of that call was disputed, the Tribunal preferred the employer's evidence) and it held that the second and third disclosures were not 'protected'. The appeal was only concerned whether the third disclosure was protected, it was about contracts not being in place for the employer's contractors, who dispensed medical appliances, and that this was therefore putting the end user patients of these devices at risk.
Rejecting the appeal, the EAT noted that all that the Claimant had done was to say that there were some contracts missing for some contractors. The Claimant then went on to combine that with an unspecified assertion that the lack of contracts was putting patients' health and safety at risk. The claim failed at the first hurdle as the 'disclosure' wasn't specific enough to be 'protected'. However, the EAT also noted that the Claimant had to show that she had a reasonable belief that the disclosure was in the public interest. Without showing a connection between contracts not being in place, and the risks to the health and safety of patients, which for someone in her position, with her knowledge, simply hadn't been made out. It's important to remember that this test depends on the circumstances and knowledge of individual whistleblowers, and what matters is the whistleblower subjectively believing the disclosure is in the public interest, and that belief being objectively reasonable. It's important for both employers and employees to carefully consider these points when dealing with or making disclosures, this case is perhaps a textbook example of how not to go about claiming whistleblower protection.
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