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Whistleblowing: Could a complaint of defamation amount to a protected disclosure?

06 February 2019
In the case of Ibrahim v HCA International Limited the Employment Appeal Tribunal (EAT) found that a hospital worker's complaint to the HR team that he was being defamed could amount to a qualifying disclosure, affording the individual whistle-blower protection.  However, the EAT upheld the Employment Tribunal's finding that the worker did not believe his complaint was in the public interest.  

Since June 2013, there has been a requirement for any potential whistle-blower to have made their disclosure of information in the 'public interest'. This is not, however, a concept that has been defined in statute. The EAT provides some helpful guidance which narrows the scope of how that concept should be defined.

The facts of this case are relatively straightforward. Mr Ibrahim had worked as an Arabic translator at a private hospital for a number of years. As one might expect, Mr Ibrahim was often required to handle highly sensitive personal data of the patients he would translate for in order to gain a clearer understanding of their predicament. In early 2016, Mr Ibrahim learnt that rumours were starting to gather momentum about how he was supposedly mishandling this data. Specifically, suggestions were being made that he was personally responsible for several breaches of patient confidentiality. As one might imagine, Mr Ibrahim was keen to protect his personal reputation, and raised two separate grievances about the content of the rumours that were circulating. In fact, it was Mr Ibrahim's repeated reference to how he wanted to "clear [his] name" that makes this case a significant one in terms of what does, or does not, amount to a 'protected' disclosure in whistleblowing claims.

Mr Ibrahim's grievances were not upheld and, to make matters worse, he was dismissed from his post a short while later. The Employment Tribunal hearing Mr Ibrahim's case were never actually required to consider whether it was this grievance that led to his dismissal, as they determined that he had not made a 'protected' disclosure in the first instance.

This was for two distinct reasons, both of which were later appealed against by Mr Ibrahim. Firstly, the Tribunal found that, in complaining about rumours that had been circulating, Mr Ibrahim had not made a disclosure of information that tended to show how someone had breached their legal obligations, as per s43B of the Employment Rights Act ('ERA'). Whilst he was ultimately unsuccessful in his overall appeal, the EAT did uphold this element of Mr Ibrahim's appeal.  The EAT found that the ambit of s43B was broad enough to include statutory duties such as those contained in the Defamation Act 2013. Whilst Mr Ibrahim had not specifically used a legal term like 'defamation' when raising his grievances, the EAT found that his descriptions of his concerns were enough to have allowed the Tribunal to link his disclosure to the statutory duties set out in the Defamation Act 2013.

However, the Tribunal went on to find that the complaint made by Mr Ibrahim was not made in the public interest. This decision was upheld by the EAT. The EAT found that Mr Ibrahim's sole intention was to clear his own name, which appeared consistent with the content of his grievance letters. When reaching this decision, the EAT applied the well-established two-limbed test of, firstly, did Mr Ibrahim believe that he was making a disclosure in the public interest and, secondly, was that belief a reasonable one to hold. The EAT's judgment does acknowledge that, as far as the latter is concerned, it is not essential for a claimant's primary motivation to relate to whether the disclosure was in the public interest. Nevertheless, they found that the Tribunal had correctly identified that Mr Ibrahim's only concern in this instance was the effect that the rumours about his conduct were having on his personal reputation. Further, it was held that Mr Ibrahim did not subjectively believe that his complaints were in the public interest. Whilst Mr Ibrahim's Counsel made reference to how the complaints being made did relate the integrity of data protection, the EAT rejected these submissions on the basis that this was clearly not something that was on Mr Ibrahim's mind at the time of his complaint. Therefore, as the 'public interest' test was not satisfied, Mr Ibrahim's claims were dismissed in their entirety.



There are two points of significance from this judgment. The first is that employers should be very alive to the fact that there is an increasingly broad scope for employee disclosures to fall within the confines of s43B ERA. This now extends to circumstances where the employee in question has not explicitly stated what exact legal obligations they believe are not being met. This could lead to some surprising results, and employers would do well to tread carefully when handling unhappy employees who are describing their grievances. Conversely, this judgment does make it clear that those employees who do wish to make disclosures of information must not be doing so purely for their own self-interest. Whilst the reality of the situation is that many disclosures will be made both in the public interest and the private interests of the employees, it does give some respite for employers facing whistleblowing claims from employees who only appear to be looking out for themselves.


Authored by Oliver Sargent and Joanne Frew.