Can a complaint of defamation amount to a protected disclosure?
What is a protected disclosure?
The Public Interest Disclosure Act 1998 protects workers who have made a "qualifying disclosure" against reprisals, such as dismissal or detriment (otherwise known as whistleblowing).
For there to have been a qualifying disclosure, the worker must have made a disclosure of information, the information must relate to one of six types of "relevant failure" and the worker must have a reasonable belief that the disclosure is made in the public interest.
The categories of wrongdoing covered by the legislation overlap to a certain extent, and are extremely broad. The six types of "relevant failure" are:
•Breach of any legal obligation.
•Miscarriages of justice.
•Danger to the health and safety of any individual.
•Damage to the environment.
•The deliberate concealing of information about any of the above.
Although the name suggests otherwise, when the Public Interest Disclosure Act came into force, there was no express requirement for the disclosure to be in the public interest. The wording of the legislation was amended in 2013 after an employee successfully argued that a breach of his own contract of employment amounted to a protected disclosure, even though there was no public interest (Parkins v Sodexho).
Despite disclosures after 25 June 2013 specifically requiring the public interest test to be met, it may still be possible for workers to show that it is reasonable for them to view complaining about a breach of their own contract or other unfair working conditions as being in the public interest.
Ibrahim v HCA International Ltd
This recent case dealt with the question of what amounts to a qualifying disclosure, and specifically whether the public interest test had been met.
Mr Ibrahim worked as an interpreter for HCA International, which operated in a number of private hospitals. In 2016 Mr Ibrahim asked the company to investigate rumours circulating that he was responsible for breaches of patient confidentiality. Mr Ibrahim told HCA that he wanted to "clear his name" and restore his reputation.
HCA investigated and rejected Mr Ibrahim’s complaint. When he was later dismissed, he brought a Tribunal claim of, among other things, detriment for having made a protected disclosure.
The Employment Tribunal rejected the whistleblowing claim. It found that a complaint that false rumours had been spread was not a disclosure of information which tended to show a breach of a legal obligation. The Tribunal also found that the complaint was not one which was made in the public interest, but rather it was made with a view to Mr Ibrahim clearing his name and re-establishing his reputation.
Mr Ibrahim appealed to the Employment Appeal Tribunal (EAT) on two grounds:
1.that a breach of a legal obligation includes an allegation of defamation; and
2.the Tribunal failed to properly apply the public interest test.
The EAT agreed that the reference to a breach of a legal obligation is wide enough to include tortious duties, such as defamation. The EAT held that Mr Ibrahim’s complaint was clearly an allegation that he was being defamed, even though he did not use this precise terminology.
However, the EAT agreed with the Employment Tribunal’s decision that the public interest element was absent.
The Tribunal had been entitled to find that it was of personal concern to Mr Ibrahim that he was being defamed and the effect that this had on him. He therefore had no subjective belief that his disclosure was being made in the public interest.
Mr Ibrahim’s appeal therefore failed.
This is one of the very few decisions in which the public interest test has been found in the employer’s favour and re-establishes the importance of change to the whistleblower legislation in 2013. That is, to prevent workers from claiming whistleblowing protection about breaches of their own contract, or other matters which have no connection to the wider public interest.
It may, however, still be possible for other allegations of defamation to amount to a protected disclosure, if individual features of the case make it reasonable to regard the disclosure as being made in the public interest, and not just in the personal interest of the worker.
For further advice or help with any of the issues raised in this article, please contact Kathryn Moorhouse.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.