Can an allegation amount to a protected disclosure?

The question of whether an allegation amounted to a protected disclosure was recently considered by the Court of Appeal in the case of Kilraine v London Borough of Wandsworth. A disclosure constitutes a ‘protected disclosure’ if it contains information which, in the reasonable belief of the worker making the disclosure, falls under one or more of the categories of wrongdoing specified by statute.

The employee bringing the case (the “Claimant”) started out working as a teacher for an education authority (the “Respondent”) and was later promoted to the role of Education Achievement Project Manager. This role involved overseeing projects that aimed to raise educational standards in schools.

Whilst the Claimant was in her role as Education Achievement Project Manager, relations with her colleagues and managers deteriorated. This led the Claimant to make several complaints in late 2010. It was later alleged that these complaints were unfounded and an investigation was carried out. The Claimant was suspended on full pay during the investigation. In early 2011, the Claimant was made redundant. The Respondent explained that this was due to a loss of educational funding.

The Claimant issued claims against the Respondent for unfair dismissal and detriment to which she claimed she had been subjected to as a result of making the complaints about her colleagues. The Claimant held that these were protected disclosures. The Employment Tribunal rejected both claims.

The Claimant appealed the ET’s decision to the EAT. The EAT disagreed with the ET’s approach; however, it also dismissed the appeal.  The Claimant then appealed to the Court of Appeal.

The Court of Appeal was only concerned with the third and fourth disclosures made by the Claimant. These are summarised below:

Third disclosure:          “Since the end of last term, there have been numerous incidents of inappropriate behaviour towards me, including repeated sidelining, and all of which I have documented.”

Fourth disclosure:        “She did not support me, as she claims, when I reported a safeguarding issue during [a meeting on 16 June 2010]. Her response, which shocked me was 'I can't comment, I am never there during the school day, only before … or after … so I can't comment'. This was, repeated, belittling and I tried very hard to engage her as my line manager in the report.”

The Court of Appeal agreed with the EAT’s approach, however it also dismissed the Claimant’s appeal. In the first instance the ET had held that the Claimant’s disclosures were not disclosures of information, but were in fact merely allegations and so did not meet the definition of a protected disclosure. The EAT and the Court of Appeal disagreed with this approach and held that the terms ‘information’ and ‘allegation’ were not mutually exclusive despite this being the position previously maintained in case law. An allegation can therefore meet the definition of a protected disclosure.

Despite this, the Claimant’s appeal was still dismissed on the basis that neither disclosure satisfied the definition of ‘protected disclosure’ under statute. The third disclosure did not contain information and the fourth disclosure did not fall under the selected category of wrongdoing (i.e. there had not been a failure to comply with a legal obligation to which the concerned individual was subject to).