Is an allegation of defamation capable of receiving whistleblowing protection?
Tuesday 12th February 2019
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.