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Analysing and pleading whistleblowing claims following the Court of Appeal’s decision in Kilraine

This article was written for the Practical Law Employment Blog by Daniel Northall and has been reproduced with the permission of the publishers. For further information visit www.practicallaw.com or call 020 7542 6664.

As most employment lawyers will testify, whistleblowing claims are easy to allege, but hard to prove and even harder to win.

Much of this difficulty stems from the fact that, in my experience, whistleblowing claims are often not properly analysed prior to lodging the ET1. This results in:

• A failure to make an informed decision on whether the claim should be brought at all.
• Deficiencies in the pleadings.

The importance of undertaking a rigorous analysis of a whistleblowing complaint at an early stage of the litigation is under appreciated. Whistleblowing claims are often deployed as an “add-on” for claims of ordinary unfair dismissal for high earning individuals, so as to raise the spectre of a large award during negotiations. However, if the claimant and his or her advisers have not satisfied themselves that the whistleblowing claim is at least sustainable, it is a dangerous game. Employment tribunals are alert to cynical whistleblowing complaints and, once pleaded, a weak whistleblowing claim will suffer one of two fates: withdrawal by the claimant at a later stage or dismissal by the tribunal at a preliminary or final hearing. Both outcomes carry possible costs consequences.

In Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436, the Court of Appeal gave guidance on the essential characteristics of a protected disclosure.

Ms Kilraine was employed by the London Borough of Wandsworth as an Education Achievement Project Manager. She brought employment tribunal proceedings, arguing that she had made protected disclosures during her employment and suffered both detriment and dismissal as a result. She relied on four disclosures, the third and fourth of which were the subject of the appeal.

The important points to be taken from the Court of Appeal’s judgment are:

• There is no rigid dichotomy between “information” on the one hand, and an “allegation” on the other. A disclosure may be described as an allegation but may nonetheless contain sufficient factual content to satisfy the requirements of the legislation.
• The essential question is and remains whether a disclosure contains information tending to show one of the six matters prescribed by section 43B(1)(a) to (f) of the Employment Rights Act 1996.
• A “bare” allegation such as “you are not complying with health and safety requirements” is general and devoid of specific factual content. It is therefore very unlikely to satisfy the definition of a qualifying disclosure.
• Whether a particular disclosure qualifies for protection should be assessed in the light of the particular context in which it was made.
• However, if context is relied upon, it is for the claimant to explain in the ET1 the context and the meaning to be drawn from it. The employer is then in a position to dispute the context, if appropriate, or the associated meaning.
• If a list of issues is completed by the parties, it should identify the totality of the elements of the disclosure which qualifies it for protection. This includes the relevant legal obligation which formed part of the claimant’s belief.

In light of this guidance, my essential tips for employment lawyers are set out below.

Understand the background to the alleged disclosure
A disclosure, on its face, may appear to be no more than a bare allegation. However, it may take on the quality of a protected disclosure in its proper context. Unfortunately, “context” can take many forms, including letters, emails, telephone calls, meetings, informal comments and even the conduct of the parties. In technical and highly regulated industries, such as financial services, understanding the context may require examining an extended course of communication between the parties or with an external body. But there is no escaping this exercise if a claimant is to be advised properly. At a very early stage, a legal adviser needs to know:

• What the disclosure was.
• What the tribunal needs to see, or be given evidence on, in order to understand its proper context.

Proper pleadings are critical
The value of good quality pleadings is underestimated. A properly pleaded case signals that a claimant understands his or her case, is ready for the fight and has engaged lawyers who are well drilled. It assists the tribunal at the case management stage and reduces the risk of a claimant being forced onto the back foot through a strike out or deposit application.

As the Court of Appeal in Kilraine explained, if a claimant relies upon the context to a disclosure, it must be pleaded. The simple example given in Kilraine illustrates the point. If a worker brought their manager to a hospital ward, showed them sharps left lying around and said “You are not complying with health and safety requirements”, the statement would qualify from the context in which it was made. The pleading would have to explain both the worker’s comment as well as the fact of them showing the manager around the hospital ward.

In practice, the context is likely to be much more complicated and the pleading needs to set out every communication relied upon in providing the context.

Lists of issues need proper thought
Lists of issues should not be a regurgitation of the statutory elements of a claim. This approach says nothing about how a disclosure qualifies for protection in a particular case and tribunals find such lists extremely unhelpful.

At the very least, issues identifying a protected disclosure should set out the date, occasion and recipient of the disclosure, what was said or done and a sufficient précis of the context in order to show that the disclosure qualified for protection. The issue should also identify the legal obligation(s) which formed part of the claimant’s belief.