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16 September 2019

190: Allegation that supervisor was taking patient’s food amounted to whistleblowing

In order to be protected against detriment or dismissal under the whistleblowing legislation, a worker must have made a disclosure which, in their reasonable belief, is made in the public interest and shows breach of a legal obligation or one of the other protected grounds.

In Elysium Healthcare No. 2 Ltd v Ogunlami, the Employment Appeal Tribunal (EAT) has held that a health worker’s allegation that his supervisor was taking a patient’s food amounted to a protected disclosure.

Mr Ogunlami was employed as a care assistant for Elysium, which provides specialist treatment for patients detained under the Mental Health Act. He complained to management that his supervisor was taking a patient’s food and asked for this to be investigated, pointing out that this could be a safeguarding issue. Although there was an investigation, Mr Ogunlami was concerned that it lacked objectivity since his supervisor was involved. He therefore wrote to HR expressing his concerns. Some months later, due to the lack of response, he also wrote to a safeguarding officer. He subsequently received an email from the hospital’s director warning him not to pursue the issue further. Around six months later, Mr Ogunlami was unexpectedly moved to a different site. He was also unsuccessful in his application for a promotion.

Mr Ogumlami brought a whistleblowing claim alleging that he had been subjected to detriments because he had made a qualifying disclosure. The Employment Tribunal upheld his claim, ruling that his complaint amounted to a protected disclosure, and that the director’s email and being moved to a different site amounted to detriments. Being denied a promotion was not a detriment as there was no evidence to link this to his disclosure. Mr Ogumlami was awarded £7,500 for injury to feelings.

Elysium appealed to the EAT on the basis that the Tribunal had not established that Mr Ogumlami had a subjective belief that a legal obligation was being breached, or that he had a reasonable belief that his disclosure was in the public interest.

The EAT dismissed the appeal. Even though Mr Ogumlami’s complaint had not explicitly referred to breach of a legal obligation, it was clear from the various descriptions of his supervisor’s conduct as a disciplinary matter, a breach of company policy and a possible safeguarding issue, that he considered that it amounted to a breach of his supervisor’s employment contract. The EAT noted that whistleblowers could not be expected to use precise legal terminology, and that to require use of the words ‘breach of a legal obligation’ would impose too high a requirement. It was also clear that the Tribunal had applied the law correctly when ruling that Mr Ogumlami had a subjective belief in the public interest nature of his disclosure, since he was highlighting the possible mistreatment of vulnerable patients.

This decision confirms that Tribunals will not expect employees to have a detailed knowledge of whistleblowing legislation and terminology. It also illustrates that employers must proceed very carefully when dealing with an employee’s allegations of wrongdoing by a colleague which might amount to a breach of their employment contract.

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