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WHISTLEBLOWING TARA O’HALLORAN Old Square Chambers @OldSqChambers #ukemplaw

MISS X v SAXTON 4X4 LIMITED 320064/2016 Disclosure of sexual assault to employer Employer became aware Miss X had taken and supplied class A drugs at / after work xmas party Miss X subject to disciplinary proceedings, which included uncomfortable questioning about the sexual assault. Outcome? Why she didn’t scream – why not leave Succeeded on ordinary unfair dismissal

Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436 Guidance from CA on requirement for disclosure of information Purported disclosure - “Since the end of last term, there have been numerous incidents of inappropriate behaviour towards me, including repeated sidelining, and all of which I have documented. ET said it did not disclose any information. Instead it made allegations. Project manager - number of complaints about other members of staff and managers. 4 alleged protected disclosures Disclosure said nothing specific – did not sensibly convey any info at all. It was also difficult to see how what was said was a criminal offence or failure to comply with legal obligations. Simply far too vague. CA aGREED. Question in each case is whether a particular statement or disclosure is a disclousre of information. Whehter meets standard = matter for tribunal in light of facts. Placed on garden leave – disciplinary on basis of unfounded allegations – redundancy dismissal Whistleblowing and unfair dismissal Worker brings manager to a particular ward in a hospital, gestures to sharps left lying around and says “you are not complying with Health and Safety requirements” statement context would constitute a qualifying disclosure. Note – list of issues did not identify legal obligation in mind nor did her witness statement. Felt legal obligation was not in her mind at the material time. So could not satisfy subjective requirement that she believed at time of disclosure that info tended to show etc.

EAT dismissed appeal but said… NO RIGID DICHOTOMY BETWEEN INFORMATION AND ALLEGATIONS CA AGREED CONTEXT ALSO HIGHLY IMPORTANT

Ibrahim v HCA International Ltd UKEAT/0105/18/BA C complained of false rumours of breaching patient confidentiality ET - no disclosure because hadn’t identified breach of a legal obligation EAT - may not have used word defamation but clear from his allegation But any other potential issue with his claim? the claimant, who worked as an interpreter at a private hospital, asked for an investigation into rumours among patients and their families about him. He stated that he had been blamed by some families for disclosing confidential information and that he needed to clear his name. ET – concluded disclosures not mad in public interest, but rather with a view to clearing his name. EAT dismissed this argument as finding his only concern was false rumours had been made about him and the effect on him. He had nothing in mind which showed a subjective belief in the public interest element of the disclosure.

Day v (1) Lewisham and Greenwich NHS Trust and (2) Health Education England [2017] EWCA Civ 329 Trainee doctor made protected disclosures against HEE ET – struck out claims on basis HEE not his employer under s43K(2)(A). EAT agreed. CA – allowed appeal. (1) Whistleblowing legislation to be given a PURPOSIVE CONSTRUCTION (2) Doctor can in principle be employed by both.

Mid Essex Hospital Services NHS Trust v Smith [2018] 3 WLUK 79 C employed as a nurse for 28 years without complaint Trade union rep throughout employment Made a series of protected disclosures and trust dismissed him ET felt C regarded by management as a nuisance and rejected suggestion he had been dismissed for SOSR. Not a case where making of the protected disclosure could be separated form way in which complaints were pursued.

EAT said ET entitled to reject Trust’s case that dismissal was related to conduct but should have considered Trust’s alternative case that principal reason was decision maker’s view of C as a nuisance Although being a nuisance due to union activities was equally unattractive, there had been no complaint of automatically unfair dismissal on that basis.

Jesudason v Alder Hey Children’s NHS Foundation Trust UKEAT/0248/16/LA 2018 Consultant pediatric surgeon – complained about colleagues’ professional competence and general conduct etc. Dissatisfied with outcome of investigation report Issued ET proceedings for whistleblowing detriment Interim injunction to prevent panel convening to consider termination of contract.

ET – disclosures did not satisfy reasonableness requirement Disclosures repeated older criticisms – seriousness had diminished because they were old failures that had been reported and actioned. Unlikely to recur. EAT agreed and dismissed perversity argument that several concerns remained uninvestigated - they had not been identified in list of issues under heading of reasonableness. On appeal

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