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11 March 2019

154: Allegation of defamation can amount to qualifying disclosure under whistleblowing legislation

In order to be protected under the whistleblowing legislation, a worker must make a disclosure relating to one of the specified categories of wrongdoing which, in their reasonable belief, is made in the public interest.

In the recent case of Ibrahim v HCA International Ltd, the Employment Appeal Tribunal (EAT) considered whether an employee’s allegation of defamation could give rise to a whistleblowing claim, and whether it was made in the public interest.

Mr Ibrahim was employed by HCA International Ltd as an interpreter in a private hospital. He asked a senior manager to investigate rumours circulating among patients and their families that he was responsible for breaches of patient confidentiality, so that he could clear his name. HCA subsequently investigated and rejected this complaint. When Mr Ibrahim was later dismissed, he brought a whistleblowing claim in the Employment Tribunal, arguing that his complaint had amounted to a protected disclosure.

The Tribunal rejected his claim, finding that a complaint of false rumours being spread was not a disclosure of information which showed a breach of a legal obligation. In addition, since Mr Ibrahim made his complaint in order to clear his name and re-establish his reputation, he was not acting in the public interest. Mr Ibrahim appealed to the EAT.

Contrary to the Tribunal’s finding, the EAT held that an allegation of defamation could come within the whistleblowing category of breach of a legal obligation. Although Mr Ibrahim had not used the precise legal terminology, it was apparent that his complaint of false rumours being spread about him was an allegation of defamation. However, the EAT dismissed Mr Ibrahim’s appeal because he had not demonstrated a reasonable belief that his disclosure was in the public interest. The evidence clearly showed that the complaint to his manager was made only in his personal interests. Although Mr Ibrahim had later alleged that he was concerned about wider data protection issues which engaged the public interest, there was no evidence that he held this belief at the time of making his complaint.

This case confirms that a whistleblower can be protected if their disclosure relates to tortious duties, including defamatory comments by colleagues. Although Mr Ibrahim’s claim failed because his disclosure was made purely in his own interests, this will not always be so straightforward to establish since there are no absolute rules about what is in the public interest. Tribunals will consider all the facts and circumstances in each case, including the number of people affected, the identity of the alleged wrongdoer, the nature and extent of the interests affected, and the nature of the wrongdoing. It is vital for employers to investigate all grievances and to consider carefully whether they could amount to a protected disclosure, even where this is not specifically mentioned by the worker, or the legal terminology is inaccurate.

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