Gordons Legal Employment Update - 13 February 2019
Wednesday 13th February 2019
Is an allegation of defamation capable of receiving whistleblowing protection?
Yes, according to the EAT in Ibrahim v HCA International Limited.
To plead protection from a detriment under whistleblowing legislation, an employee (or worker) must demonstrate that they made a qualifying disclosure. Such a disclosure must, in the reasonable belief of the person making it, be in the public interest, and must make one of six types of allegation of wrongdoing. These include the belief that there is, has been, or will be, a failure by a person to comply with ‘any legal obligation to which he is subject’.
Whether or not the belief is reasonable, is assessed by reference to the perception of the person making the claim, and whether the tribunal thinks this belief was in fact reasonable in the circumstances.
There is no hard and fast rule by which to determine if it is in the public interest, but this will depend on the facts of the case, including the number of people affected by the issue, the nature and extent of the interests affected, the nature of the wrongdoing, and the identity of the alleged wrongdoer.
Mr Ibrahim worked as an interpreter in the respondent hospital. He raised a grievance in response to false rumours he said were being circulated by colleagues and patients that he was breaching patient confidentiality. His grievance stated that he wanted to clear his name. It was not upheld and Mr Ibrahim was subsequently dismissed. He brought a claim alleging that he had suffered a detriment for having made a protected disclosure.
Decision and comment
The EAT found that Mr Ibrahim had pleaded the tort of defamation, and that a breach of a tortious duty is capable of forming the basis of a whistleblowing claim. However, the EAT agreed with the Tribunal that Mr Ibrahim was concerned with the impact the rumours had on him personally. He had failed to make out any grounds of public interest, and accordingly his appeal was dismissed.
The case reiterates that a breach of tortious duty is capable of forming the basis of a whistleblowing claim. Had Mr Ibrahim pleaded his defamation claim more clearly at the outset, he could have spared himself a fruitless trip to the EAT. In this regard, the case serves as a reminder to parties to clearly frame the issues in their case. Finally, the case demonstrates the need for a claimant to adduce evidence to show they had a subjective belief that the disclosure had an element of public interest to it.
Knowledge of disability: from unknown unknowns to known knowns
In Lamb v The Garrard Academy, the EAT considered when the duty to make reasonable adjustments arose, based on the respondent’s knowledge of the claimant’s disability.
Employers have a duty to make reasonable adjustments for employees who are disabled within the meaning of the Equality Act 2010. This can arise where a provision, criterion or practice applied by the employer puts the disabled person at a substantial disadvantage in comparison with persons who are not disabled.
Crucially for the present case, the duty only arises when the employer knows, or could reasonably be expected to know, that the person is disabled. Knowledge can therefore be ‘actual’, or ‘constructive’, meaning that the employer might be expected to infer a certain amount of information without being explicitly told about an impairment.
Ms Lamb was a teacher at the Academy, but was off work because of depression and alleged bullying from February 2012. At this time, Ms Lamb’s line manager was aware that she was not sleeping well, was receiving counselling, and that she was ‘”struggling to cope”. The following month she raised a grievance regarding the bullying, which was upheld. However, the report was found to be inadequate and the decision set aside.
On 18 July 2012 Ms Lamb informed the Academy’s chief-executive that she was suffering from PTSD dating back to childhood, which could be triggered by difficult situations. Ms Lamb was assessed by Occupational Health (“OH”). In a report dated 21 November 2012, OH concluded that Ms Lamb’s depression probably began in September 2011, and could be alleviated by resolving outstanding issues from the grievance. A new investigation commenced in January 2013.
Ms Lamb did not subsequently return to work, and in November 2013 was dismissed due to capability. She brought claims alleging that the Academy had failed to make reasonable adjustments in relation to how it dealt with the grievance report. An important consideration in the case was when the Academy knew that Ms Lamb was disabled.
Decision and comment
The tribunal held that the Academy’s duty arose in November 2012, when the OH report was prepared.
The EAT disagreed and found that the School had sufficient knowledge in July 2012 to reasonably conclude that Ms Lamb’s PTSD could be a disability. At that date, Ms Lamb had been off work for around 4 months, and her grievance remained unresolved. Had an OH report been commissioned at this time, it would have concluded that Ms Lamb’s impairment might well have lasted until September 2012 – so satisfying the ‘long term’ requirement for the PTSD to amount to a disability.
The decision is a useful reminder to employers that failing to consult with OH, or other relevant professionals, at an early stage cannot then be relied upon to deny knowledge of a disability.
Court of Appeal satisfied that store workers and warehouse workers are comparable
In Asda Stores v Brierley, the Court of Appeal upheld the decisions of the ET and EAT that Asda store staff may compare their roles in the supermarket with those carried out in the distribution centre.
Broadly speaking, equal pay claims have 3 main elements to them:
- Determine whether the roles are comparable;
- Assuming they are, decide if they are of equal value;
- If they are of equal value, the tribunal must then decide if there is a reason, other than sex discrimination, that would mean the roles ought not to be paid equally.
An employee establishing an equal pay claim may wish to use an individual from another part of the business as their comparator. If this is the case then it is necessary for the employee to show that broadly common terms and conditions exist between the two business areas.
Around 7000 hourly paid supermarket employees, the overwhelming majority of whom are women, brought claims that they were not being paid the same as their predominantly male counterparts in the distribution warehouses, despite the work being of “equal value”.
Decision and comment
The Court confirmed that there is a simple question to ask at this preliminary stage: would the terms for the relevant employees apply regardless of where they worked? The Court found that Asda “applied common terms and conditions wherever they worked”. Accordingly, the business areas are comparable. It is anticipated that Asda will seek leave to appeal to the Supreme Court.
This is a widely reported case, given the potentially significant sums that might be awarded to the claimants; figures of £8 billion across the “Big-4” supermarket retailers, who all face similar claims, has been suggested. The Asda claim is the furthest progressed.
It is important to remember that this decision only concerned the first step in the above process, and the claimants still have to establish that they do work of equal value to the distribution workers. If it is found they do, Asda will undoubtedly present a “material factor” defence which would also need to be decided.
If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team.