Yes, says the Employment Appeal Tribunal (EAT). We explain why a worker's complaint about false rumours being spread about him was capable of being protected under whistleblowing law, but why in this particular case, the worker's whistleblowing claim still failed.
For a worker to be protected by whistleblowing law from suffering a detriment or being dismissed as a result of "blowing the whistle", they must have made a "qualifying disclosure". This is any disclosure of information which, in the reasonable belief of the person making it, is made in the public interest and tends to show that one or more specified types of wrongdoing has taken place, is taking place or is likely to take place. This includes a failure to comply with any legal obligation.
In this case, Mr Ibrahim, who worked as an interpreter for patients at a private hospital, complained that rumours were circulating that he had been involved in a breach of patient confidentiality and asked a manager to investigate the matter. An investigation took place but Mr Ibrahim's complaint was rejected. He was later dismissed, and claimed (amongst other things) that his complaint was a whistleblowing allegation, and that he had been dismissed for having made that complaint.
The employment tribunal considering the case decided that a complaint about false rumours being spread was not a disclosure of information that tends to show breach of a legal obligation and so did not amount to a protected disclosure. It also decided that Mr Ibrahim's complaint was not made in the public interest, but rather it was made to clear his own name and restore his reputation. For both these reasons, Mr Ibrahim was not protected for having 'blown the whistle'.
Mr Ibrahim appealed to the EAT. The EAT disagreed with the employment tribunal's view that Mr Ibrahim's complaint did not tend to show breach of a legal obligation. It said that Mr Ibrahim's complaint of damaging false rumours being spread about him that he had breached patient confidentiality was clearly an allegation that he was being defamed. He didn't need to specifically call it that in order to be protected. The EAT concluded that whistleblowing law is wide enough to protect allegations of defamation.
However, because the employment tribunal had reached the view that Mr Ibrahim was only concerned about his own personal position when he made his complaint, and was not able to show that he was acting in the public interest, his claim failed.
Practical points to take away from the case
In 2013, whistleblowing law was changed to prevent workers "blowing the whistle" about breaches of their own contract or other issues that are not in the wider public interest. This case is a reminder that a whistleblowing claim may fail where the worker has made a disclosure purely in their own self-interest.
There will be cases, where even though a disclosure relates to a worker's own personal position, because it may also have wider implications affecting other people, the tribunal will still treat the disclosure as being in the public interest, meaning the worker may be protected as a 'whistleblower'. For more information about when this might apply, please see our previous update.
Another point to take away from this decision is that a worker may be protected by whistleblowing law, even if they have not explicitly stated what legal obligations they believe are not being complied with. In this case, the employee did not specifically refer to his complaints as being complaints of defamation; but that didn't matter.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
