Can a complaint of defamation give rise to a whistleblowing complaint?
This was considered in the case of Ibrahim v HCA International Ltd (UKEAT/105/2018).
The Claimant worked for HCA International Ltd (HCA) as an interpreter. He was concerned that there were a number of rumours amongst his colleagues and patients that he had breached confidentiality. He raised a grievance and stated that he wanted to ‘clear his name’ and restore his reputation. His grievance was not upheld and he was later dismissed.
The Claimant alleged that he had suffered a detriment for having made a protected disclosure.
The legal framework
In order to succeed in a whistleblowing complaint the Claimant has to establish:
- whether the disclosure of the information i.e. the fact that false rumours have been spread tends to show a breach any legal obligation; and
- whether the disclosure was made in the public interest.
The Employment Tribunal (ET) dismissed the claims and held that a complaint that false rumours have been spread is not a disclosure of information that tends to show breach of a legal obligation. The ET also held that the complaint was not made in the public interest.
The Claimant appealed to the Employment Appeal Tribunal (EAT). It held that the Claimant’s complaint of false rumours about him that he breached patient confidentiality is clearly an allegation that he is being defamed, and therefore a breach of legal obligation. The EAT held that he Claimant may not have used the word defamation at the time but his concerns were that he wanted to clear his name.
The EAT, however, held that the Claimant did not satisfy the second limb of the test, i.e. that the concern raised was in the public interest. The EAT held that the false rumours had been made about him, and the effect of those rumours on him, and therefore was not in the public interest.
This case is important as it suggests that the breach of the legal obligation is broad enough to include tortious duties, including defamation, notwithstanding the fact that this was not specifically referred to in the Claimant’s grievance.
Employers should ensure that any grievances that are brought by employees and/or workers (workers are covered by the whistleblowing legislation) are carefully considered and investigated robustly.
If you have any questions in relation to this article or would like us to provide training on how to undertake a thorough investigation please contact Sejal Raja on firstname.lastname@example.org
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.