Ibrahim v HCA International Ltd

For section 43B(1)(b) of the Employment Rights Act 1996, a legal obligation may include a tortious duty, including the duty not to defame. A worker need not use precise legal terminology if the substance of the disclosure alleges such a breach.

The public-interest requirement remains separate. The tribunal must first decide whether the worker believed the disclosure was in the public interest and, only if so, whether that belief was reasonable. Personal motive does not itself defeat the requirement, but a finding that the worker had no subjective public-interest belief is decisive.

The claimant, a bank interpreter at a private hospital, complained that rumours falsely accused him of breaching patient confidentiality. He sought an investigation to clear his name and restore his reputation.

An Employment Tribunal held that he was a worker but dismissed all claims at a preliminary hearing. It found that the grievances were not protected disclosures because they did not tend to show a breach of legal obligation and were not made in the public interest.

On appeal, the issues were whether the allegation of false rumours could disclose a breach of a legal obligation under section 43B(1)(b) of the Employment Rights Act 1996, and whether the Tribunal had correctly applied the public-interest test.

1. Appeal dismissed. Although the Employment Tribunal erred on the first issue, its independent conclusion that no protected disclosure had been made was upheld.

2. Section 43B(1)(b) of the Employment Rights Act 1996 is sufficiently broad to encompass tortious obligations, including defamation, and statutory duties. The claimant’s allegation that false and damaging rumours were being spread that he had breached patient confidentiality was, in substance, an allegation of defamation. It was immaterial that he had not used that legal label. The Tribunal therefore erred in holding that no possible legal obligation had been identified.

3. Following and applying Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2017] EWCA Civ 979, the public-interest inquiry has two stages. The worker must have believed, when making the disclosure, that it was in the public interest. If that is established, the Tribunal must decide whether the belief was reasonable. A public-interest belief need not be the worker’s predominant motive, or any part of the motivation for making the disclosure.

4. The Tribunal’s wording could have more clearly separated those stages. Read as a whole, however, its findings established that the claimant’s concern was solely the false rumours about him and their personal effect upon him. It was entitled on the evidence to find that he had no subjective belief that his disclosure was in the public interest. The inquiry therefore ended without any need to assess objective reasonableness.

• Employment Appeal Tribunal: Dismissed the appeal from the Employment Tribunal. It upheld the dismissal of the whistleblowing claim because the claimant had not shown the requisite subjective belief that his disclosure was in the public interest.

• Employment Tribunal, London (Central): At a preliminary hearing held on 14 and 15 June 2017, dismissed all claims. It found that the claimant was a worker, but that his grievances were not protected disclosures under section 43B of the Employment Rights Act 1996.