The law says that when bringing a complaint about making a protected disclosure (blowing the whistle), claimants have to show that they had a reasonable belief that it was made in the public interest. In Ibrahim v HCA International Ltd, the Court of Appeal held that, to establish this point, claimants have to be asked directly by the tribunal whether they subjectively believed they were acting in the public interest.
Basic facts
Mr Ibrahim, an interpreter for Arabic-speaking patients at a private hospital, met with a senior manager on 15 March 2016 to ask her to investigate rumours circulating among patients and their families that he had been leaking patients’ confidential information. She referred his complaint to the head of HR who started an investigation after meeting him on 22 March. Mr Ibrahim made clear on both occasions that he wanted to “clear his name and restore his reputation.”
After his complaint was rejected, he brought claims alleging that he had made two protected disclosures, the first on 15 March and the second on 22 March, under section 47B of the Employment Rights Act (ERA) 1996. The tribunal first had to decide, at a preliminary hearing, whether he had made a qualifying disclosure under section 43 ERA.
Relevant law
Section 43 defines a "qualifying disclosure" as “any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show … that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he [sic] is subject.”
Section 47B states that a worker has the right not to be subjected to any detriment as a result of an act (or failure to act) by their employer or another worker working for that employer on the ground that the worker has made a protected disclosure.
Tribunal and EAT decisions
The tribunal held, firstly, that an allegation of false rumours could not amount to a disclosure of information under section 43 tending to show that someone had breached a legal obligation.
Secondly, further to the decision in Chesterton Global Limited (T/A Chestertons) v Nurmohamed (weekly LELR 543), it held that Mr Ibrahim did not have a subjective belief in the public interest element of his disclosure as he was only concerned about the effect of those rumours on him as an individual.
Although the EAT agreed with Mr Ibrahim that the reference in section 43 to a “legal obligation” could include an allegation of defamation against him, it was open to the tribunal on the evidence to conclude that he did not have a subjective belief in the public interest element of his disclosure (weekly LELR 611).
Decision of Court of Appeal
Given the judgment in Chesterton the Court of Appeal held that Mr Ibrahim should have been asked firstly whether he believed, at the time he made the disclosures, that he was acting in the public interest and secondly, whether that belief was reasonable.
Although the tribunal judge identified that Mr Ibrahim wanted to “clear his name”, he failed to establish his subjective beliefs at the time. It was clearly relevant that Mr Ibrahim made no such reference himself, but that did not dispose of the requirements under Chesterton that claimants must be asked directly whether they believed they were acting in the public interest.
The Court of Appeal therefore allowed the appeal and remitted this point to the same tribunal to carry out this exercise.
Comment
The case is a useful reminder of the law regarding protected disclosures. It is also a reminder that an individual who wishes to pursue such a claim must be able to present clear evidence of a subjective belief that their disclosure was made in the public interest.