What is a "disclosure" of information in a protected disclosure?
The Employment Appeal Tribunal issued a decision on 11 November 2009 in Cavendish Munro v Geduld (click here for downloadable copy of the judgment ) which provides that for a person to make a protected disclosure they must disclose information about a situation by conveying facts. It is not sufficient to merely make an allegation.
The Employment Appeal Tribunal gave examples of what this means with an analogy. at paragraph 24 they write:
"Further, the ordinary meaning of giving “information” is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating “information” would be “The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around”. Contrasted with that would be a statement that “you are not complying with Health and Safety requirements”. In our view this would be an allegation not information.
"In the employment context, an employee may be dissatisfied, as here, with the way he is being treated. He or his solicitor may complain to the employer that if they are not going to be treated better, they will resign and claim constructive dismissal. Assume that the employer, having received that outline of the employee’s position from him or from his solicitor, then dismisses the employee. In our judgment, that dismissal does not follow from any disclosure of information. It follows a statement of the employee’s position. In our judgment, that situation would not fall within the scope of the Employment Rights Act section 43.
Any bullied employee hoping to rely on the protection offered by the Public Interest Disclosure Act must therefore make sure that they spell out what is happening or has happened, and not just how they feel about it.
Typically, employees' complaints of bullying made to their employers explain what the alleged bullying consists of and the effect it is having. I have yet to hear of a grievance which merely says "my manager has, without reasonable and proper cause, conducted himself in a manner calcualted or likely to destroy or seriously damage the reslationship of trust and confidence between us."
However, if a grievance alleges intimidation of the complainant, it should identify an act that resulted in the complainant being intimidated.
I have to say I am not comfortable with this EAT decision, because in my opinion the interpretation of the legislation strays from what Parliament must have intended. They must have intended to create a piece of legislation where, in simple terms, employees would not get into trouble for telling their employers about wrongdoing in their midst. This decision, which makes a subtle distinction between disclosing information and stating one's position, creates an opening for employers to retaliate against an employee who has raised a concern in the public interest.
What the judgment does not appear to address is that the legislation requires a disclosure of information that "tends to show" a relevant failure. In my opinion, saying that you are sick and tired of being bullied and are on the verge of resigning tends to show that a person has failed to comply with a legal obligation to which they are subject. It is information and it tends to show something. I hope the employee who lost this appeal has the finances and stamina to take it to the Court of Appeal.
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Gus
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Thanks for bringing this to our attention, Adrian. A bizarre judgement indeed, in that it seems a deliberate intention to set a precedent for cases that are so different to the matter at hand you almost wonder why she doesn't have a go at "the youth of today" etc while she is at it! Hang 'em all, that's what I say  |
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