Can A Complaint About Defamation Be A Protected Disclosure For The Purpose Of A Whistleblowing Claim?

The law

The Public Interest Disclosure Act 1998 came into force on 2 July 1999, inserting sections 43A to 43L and 103A into the Employment Rights Act 1996 and providing protection for workers reporting malpractices by their employers, or third parties against victimisation or dismissal.

The legislation creates two levels of protection for whistleblowers:

the dismissal of an employee will be automatically unfair if the reason, or principal reason, for their dismissal is that they have made a "protected disclosure"; and workers are protected from being subjected to a detriment on the ground that they have made a protected disclosure. Demonstrating that the employee has made a qualifying disclosure is the first step in establishing protection under the whistleblowing legislation.

A qualifying disclosure is a disclosure of information which, in the reasonable belief of the worker making it, tends to show that one or more of six types of malpractice has taken place, is taking place or is likely to take place (section 43B(1), Employment Rights Act 1996). The six types of malpractice are:

criminal offences; breach of any legal obligation; miscarriages of justice; danger to the health and safety of any; damage to the environment; and the deliberate concealing of information about any of the above. Further, the worker must have a reasonable belief that the disclosure is in the public interest.

Whether a qualifying disclosure is also protected broadly depends on the identity of the person to whom the disclosure is made. The legislation encourages disclosure to the worker's employer in the first instance and such disclosures, as well as disclosures to a "responsible" third party or a "prescribed person", are likely to gain protection relatively easily. However, other wider disclosures, for example to the media, will only be protected in very limited situations.

Ibrahim v. HCA International Ltd UKEAT/0105/18

The Claimant, Mr Ibrahim, was employed as an International Patient Co-ordinator and worked as an interpreter for Arabic-speaking patients at the Respondent's private hospital.

He alleged that he made two protected disclosures to his employer: one on 15 March 2016 during a meeting with the Respondent's Director of Rehabilitation and the second on 22 March 2016 during a meeting with the Respondent's Chief Human Resources Officer. During the first meeting he said he asked the Respondent to investigate "false rumours" which were circulating about him...