A complaint can count as whistleblowing even if it is an allegation, as long as it is specific enough.
“An allegation can still be a protected disclosureThe legal term for a qualifying whistleblowing report. For a disclosure to be protected it must relate to specific categories of wrongdoing, you must reasonably believe it is true, and in most cases i..., so long as it carries enough specific factual detail.”
An allegation can still be a protected disclosure, so long as it carries enough specific factual detail.
- Anchor every concern in specifics: the events, the dates, and who was affected.
- Name the duty breached or the risk created, rather than complaining in general terms.
- If a first complaint was vague, you can follow up with a clearer, more detailed one.
The situation
The workerA legal category that sits between employee and self-employed. Workers are entitled to certain rights including national minimum wage, paid holiday, and protection from unlawful deduction from wages, ... was employed by a London local authority and, after her dismissal, brought a whistleblowingMaking a disclosure about wrongdoing in your workplace, such as a health and safety risk, a criminal act, or a miscarriage of justice. If the disclosure qualifies as protected, the law gives you signi... claim. She said she had made several protected disclosures during her employment and had been treated badly and then dismissed because of them. Those disclosures included two things. One was a letter to a senior children's services manager, saying the council was failing its legal duties towards her over bullyingRepeated, unreasonable behaviour towards you at work that undermines you or damages your dignity, such as persistent criticism, exclusion, humiliation, or intimidation. Bullying on its own is not auto... and harassmentUnwanted behaviour related to a protected characteristic, such as your sex, race, disability, age or religion, that violates your dignity or creates an intimidating, hostile or humiliating environment... and that she had faced repeated inappropriate behaviour. The other was an email to HR, complaining that her line manager had not backed her after she raised a safeguarding issue. The tribunal found these were allegations that did not contain enough information to qualify, and she appealed.
What the court found
The Court of Appeal dismissed her appeal, but corrected an important point of principle along the way. Information and allegation are not divided by any rigid line, and a statement need not be one or the other. A single statement can be both at once. What the tribunal should ask is whether the statement has sufficient factual content and specificity to be capable of tending to show one of the relevant kinds of wrongdoing, such as a breach of a legal obligation or a health and safety risk. On the facts, her complaints failed because they were too general, not because they happened to be phrased as allegations.
Kilraine v London Borough of Wandsworth | [2018] EWCA Civ 1436; [2018] IRLR 846 | Court of Appeal | 21 June 2018