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Not a nitpicker's charter: the legal constraints on whistleblowing

There has been a recent spate of high-profile whistleblowing cases reported in the press. The public was shocked that repeated attempts to blow the whistle by a nurse working at the Winterbourne Care Home were ignored by managers and the Care Quality Commission.

Controversy followed a judge's decision to impose a secrecy order in a whistleblowing case, involving allegations by a female colleague of misconduct against a senior official in a high-profile public body involved in law and order.

The cases, which have caught the media's attention, represent an increasing trend: in 2009, employment tribunals received 1,700 claims involving allegations of whistleblowing. Unlike Winterbourne, many claims do not involve obvious examples of employees exposing serious malpractice to safeguard the public interest. Whistleblowing claims do not require an employee to have one year's service. They also involve potentially uncapped compensation. And the media are attracted to stories involving allegations of misconduct. As a result, claimants are increasingly using whistleblowing tactically to increase the value and potential PR risk of claims.

It seems clear that this was not what Parliament had in mind when it proposed enhanced protection for whistleblowers in 1996. Labour MP Don Touhig said at the time:

"The Bill is not a nitpicker's charter; it will not provide a field day for whingers. It will protect only those individuals who, having discovered some crime, fraud or wrongdoing within their organisations, raise their concerns internally. Only then will they be protected from any reprisals."

Despite the fact that the legislation has been exploited by some employees, there are routes open to employers to defeat spurious claims.

The legislation requires that a worker must make a disclosure of 'information', which he or she believes shows some form of prescribed misconduct by the employer.

Recent cases in the Employment Appeal Tribunal (EAT) have considered exactly what 'information' means. In Cavendish Munro v Gould, the EAT held that disclosing information requires an employee to convey 'facts'. Simply making allegations is not enough. The EAT gave an illustrative example: writing to an employer and making the statement: "You are not complying with health and safety requirements" is an allegation, and does not convey facts. The disclosure of 'information' requires a statement of specific facts, such as: "The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around."

In Cavendish, the EAT also considered what would amount to a 'disclosure' of information. The case involved a director and shareholder, who had a dispute with his two fellow directors and was removed. His solicitor wrote to the directors alleging that he had been unfairly prejudiced as a shareholder. The following day, he was dismissed. The EAT found that the solicitor's letter had merely stated the claimant's position. It did not convey information. As such, it did not involve a 'disclosure'.

The meaning of 'disclosure' was further considered in Goode v Marks and Spencer. In this case, the claimant objected to Marks and Spencer's proposals to vary its discretionary enhanced redundancy scheme, a proposal he told his manager he considered "disgusting". Not content to rest at that, he wrote to The Times outlining the proposals and stating that this had prompted speculation of imminent redundancies. When it was discovered that he had written the letter, the claimant was dismissed. However, the EAT found that the claimant's statement of "disgust" to his manager was merely a statement of his state of mind. It did not convey information. The letter to The Times could not amount to a public interest disclosure: nothing that was disclosed to The Times showed that the respondent was likely to breach a legal obligation, since the redundancy scheme was discretionary. The only disclosure was that M&S wanted to discuss proposals regarding the scheme.

The key case of Perkins v Sodexho enabled employees to argue that raising a complaint about a breach of an employee's own employment contract by their employer could amount to a public interest disclosure. However, more recent case law confirms that if the employee's predominant purpose in making a disclosure is his or her personal interest (and this does not necessarily require malice or antagonism), then the disclosure will not be made "in good faith" and, as such, will not amount to a protected disclosure.

Susan Thomas is an associate at law firm Charles Russell