If an employee raises complaints about defamation by their colleagues with the intention of “clearing their name”, can that complaint form the basis of a ‘whistleblowing’ claim says Joanne Holborn, Head of Employment & Employment Training at Banes Wilson LLP.
The Employment Appeal Tribunal recently considered this question.
Ibrahim v HCA International Ltd
Mr. Ibrahim was an ‘International Patient Co-ordinator’ at one of the Respondent’s private hospitals. He was employed to interpret for Arabic speaking patients who required interpreting services. He had submitted grievances to the effect that his colleagues had spread rumours accusing him of breaching patient confidentiality.
He brought whistleblowing claim arguing that his grievances amounted to protected disclosures within the meaning of S 43(1)(b) of the Employment Rights Act 1996. To benefit from protection as a whistleblower he would, in these circumstances, need to have disclosed information which tended to show a failure to comply with a legal obligation, and that he reasonably believed his disclosure was made in the public interest. The Employment Tribunal dismissed the claim as it determined that the allegations did not allege a failure to comply with a legal obligation, and he did not have a sufficiently subjective reasonable belief that these disclosures were in the public interest.
Mr. Ibrahim appealed against the decision.
The EAT determined that the wording “breach of a legal obligation” set out in S43(1)(b) ERA1996 can be interpreted widely enough to cover claims of defamation.
Despite this, the EAT determined that the Claimant did not have a subjective belief at the time of disclosure that the allegations were in the public interest. The Claimant had said as part of the investigation into his grievances that ‘my reputation was damaged and in my attempt to clear my name I told…’. Therefore the Claimant’s intention was to protect his personal interest, and there was no public interest element. His appeal therefore failed.
It is likely to be rare that allegations of defamation involving colleagues will also be made in the public interest but employers should still take note of this decision. Employers should always be wary of the potential for whistleblowing claims when an employee has, for example, alleged that a legal obligation has been breached. Whilst the employee (or former employee) would only succeed with a whistleblowing claim if their disclosure was the main reason for their dismissal or any detrimental treatment, that’s a point often ignored or overlooked by would-be claimants.
If you have any queries please do not hesitate to contact the employment team on 01228 552600 or 01534 548494.