Whistleblowing and defamation

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In order to qualify as a ‘protected disclosure’, a person must reasonably believe that the disclosure is in the public interest and ‘tends to show’ one of six types of wrongdoing. Wrongdoing can include a criminal offence, a health and safety risk and a failure to comply with a legal obligation. In Ibrahim v HCA, the Employment Appeal Tribunal looked at whether defamation could be a failure to comply with a legal obligation.

Mr Ibrahim worked for HCA as an interpreter in private hospitals. He asked his employer to investigate rumours that he was responsible for breaches of patient confidentiality. His complaint was investigated and dismissed. When his employment was later terminated, he said it was because he had made a protected disclosure.

The employment tribunal said that allegations about spreading false rumours did not ‘tend to show’ a breach of a legal obligation. Nor did the employee have a reasonable belief that the allegations were made in the public interest. They were made because he wanted to clear his name. The employee’s claim failed, and he appealed. The Employment Appeal Tribunal disagreed with the employment tribunal on the first issue. They said that defamation allegations could fall within the wide definition of ‘breach of a legal obligation’. Even though he did not use the term ‘defamation’, it was clear that this was the allegation. However, the tribunal had been entitled to decide that the employee did not subjectively believe that his allegations were in the public interest. His concerns were personal. Therefore, his claim failed.

This case shows that the inclusion of a public interest element to whistleblowing claims has narrowed its remit. Employees can no longer ‘blow the whistle’ on breaches of their own contract where there is no wider public interest. Employers should beware though. Sometimes an allegation which seems personal has wider ramifications. Employers should tread carefully when dealing with disclosures that are potentially protected.

Astons Solicitors
February 2019