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Whistleblowing – Allegation or disclosure?
In Cavandish Monro Professional Risk Management v Geduld, decided in 2010, the EAT held that a statement by the employer to the effect that “you are not complying with health and safety requirements” did not qualify as a qualifying disclosure because it was an allegation, rather than information which, in the reasonable belief of the employee or worker, tends to show one of the categories of wrong doing contained within the Employment Rights Act. Understandably, this decision was criticised as being confusing and described by the Whistle Blowing Commission as “artificial and undermines the purpose of the law”. The Commission also noted that, under Section 43F of the ERA, such an allegation would indeed be protected if it was made to a prescribed person.
The EAT decision in Millbank Financial Services Limited v Crawford does not completely disagree with the decision in Geduld but does appear to make it slightly easier to demonstrate that there has been a qualifying disclosure to the employer. In this case, the Claimant was employed and subject to a 6 month probationary period which was extended at the end. She sent a 3 page email to the Respondent complaining about the way in which the review was carried out and identifying shortcomings which she had attempted to rectify. She was then dismissed and issued a claim for unfair dismissal on the grounds of whistleblowing. The Respondent failed in an application to have the claim struck out on the basis that the letter did not contain any information which would qualify as a disclosure. In dismissing the appeal, the EAT commented that the facts may relate to something not done as well as something which has been done; the email contained information regarding the Claimant having received no feedback during the probationary period, and having had no consultation with HR regarding extending the probationary period, or indeed with the Director.
The EAT considered that the letter went beyond a mere allegation or statement of her position and as such was allowed. However compared to the Geduld decision, there appears on the face of it to be little difference in the respective “disclosures”.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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