Don’t shoot the whistleblower

The aim of integrity, health and safety, and fair competition should apply to most, if not all, industries and therefore these vital disclosures should be encouraged, not punished.

The overall process of whistleblowing, from making the decision to speak up to actually doing so, can result in the employee feeling uncertain and concerned about the risk to their career. However the Government is being proactive in making protection of whistleblowers a public policy aim. A disclosure will be protected if it is a qualifying disclosure and was made in the public interest, in the reasonable belief of the whistleblower.

Interestingly, the recent case of Ibrahim v HCA International Ltd EAT/0105/18 demonstrates how the need to show that disclosure was made in the public interest may limit a claim.

Mr Ibrahim, a former hospital interpreter with healthcare provider HCA, made a complaint of defamation after asking a senior manager to investigate rumours among patients and their relatives that he was behind breaches of patient confidentiality.

HCA investigated the complaint, rejected it and dismissed him. Mr Ibrahim brought an Employment Tribunal claim alleging that he had suffered a detriment for having made a protected disclosure – i.e. whistleblowing. The claim was dismissed by the Tribunal.

Mr Ibrahim then appealed to the Employment Appeal Tribunal, which held that whistleblowing legislation could encompass tortious duties such as defamation and breach of statutory duty. However because Mr Ibrahim’s aim was to clear his name and restore his reputation, this did not satisfy the second limb of the test.

Legal opinion

The case demonstrates that the definition of “public” will be satisfied if the complaint affects more than one person. Mr Ibrahim’s claim could therefore have succeeded if the complaint affected other employees or the whole team. While this case is an example of how a claim may be limited, the protection for whistleblowers is growing and we recognise the important role whistleblowers play in maintaining an organisation’s integrity and robustness. Employers should take great care in ensuring they have clear whistleblowing policies, which set out its purpose, procedures and how the employer will seek to protect employees who raise disclosures that qualify for protection.