Whistleblowing Cases

11 March 2019 | Jatinder Tara

Case of Ibrahim v HCA International Ltd UKEAT/0105/18

Can an employee’s complaint of defamation be regarded as protected disclosure under whistleblowing?

To succeed in a whistleblowing claim two key points must apply namely:

  1. A Qualifying Disclosure - A disclosure of information which, in the reasonable belief of the claimant, tends to show one or more of the six specified types of malpractice (one being breach of any legal obligation) and
  2. Public Interest - The claimant has a reasonable belief that the disclosure was in the public interest.

The case of Ibrahim v HCA International Ltd UKEAT/0105/18, The Employment Appeal Tribunal on appeal had to determine if a complaint of defamation could be regarded as protected disclosure.

Mr Ibrahim worked for HCA as a hospital interpreter. He asked a senior manager to investigate rumours circulating among patients and their relatives that he was responsible for some breaches of patient confidentiality and followed this up with an email stating that he needed to clear his name.

The manager referred the matter to HR, and Mr Ibrahim told an HR officer that he wanted to clear his name and restore his reputation. HCA investigated the complaint and rejected it. When he was dismissed, Mr Ibrahim brought an employment tribunal claim in detriment for having made a protected disclosure i.e. whistleblowing which was dismissed by the Tribunal and Mr Ibrahim then appealed to Employment Appeal Tribunal.

Findings of the ET

The Employment Appeal Tribunal found that an allegation that someone was being defamed could fall as a breach of a legal obligation, as the legislation was wide enough to include tortious duties such as defamation and breach of statutory duty however, Mr Ibrahim did not subjectively believe that his disclosure was made in the public interest since his intention was to clear his name hence the disclosure was not protected, thus Mr Ibrahim's whistleblowing claim failed.

This case demonstrates just how wide whistleblowing can be interpreted by the tribunals in that breach of any legal obligation is wide enough to cover duties in tort like defamation as well as statutory and contractual obligations but equally how the requirement for disclosures to be ‘in the public interest’.

Public interest does not need to be the public at large, it just needs to be more than one and not a personal issue for one individual, thus it may have been possible that Mr Ibrahim's claim could have succeeded if the rumours had affected several employees or a whole team.

Employers should take note of this decision where an employee brings a grievance and mentions his/her reputation or clearing his / her name, it should be investigated carefully.

If this case raises any issues for you or your organisation, please speak to our Quest HR Advisors.

The contents of this article is intended for general information purposes only.

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