Disclosure of information requires specific and sufficient factual content to render it a ‘protected disclosure’ (Kilraine v London Borough of Wandsworth)

In Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436 the Court of Appeal held that, in dismissing Ms Kilraine’s appeal, what Employment Tribunals must focus on in determining whether there had been a ‘protected disclosure’ was whether there was information disclosed which showed, or tended to show, information that, for example, constituted a breach of a legal obligation.

The factual background of Kilraine v London Borough of Wandsworth

Ms Kilraine commenced employment with London Borough of Wandsworth’s (“LBW”) education authority on 1 September 2003. Over the years, she made a number of complaints about her colleagues – on 21 July 2005, 25 January 2008, 10 December 2009, and 21 June 2010. Shortly after the 2010 complaint she was placed on garden leave and on 1 September 2010 she was suspended on full pay pending a disciplinary investigation into allegations that she had made unfounded allegations against colleagues.

In early 2011 LWB was forced to make cuts due to a reduction in government funding. Due to this Ms Kilraine’s employment was terminated on the grounds of redundancy on 30 September 2011.

Ms Kilraine subsequently brought claims for unfair dismissal and automatic unfair dismissal in the Employment Tribunal.

The Employment Tribunal decision

The Employment Tribunal upheld Ms Kilraine’s claim for unfair dismissal (but reduced compensation to nil because of the chance that she would have been fairly dismissed had a fair procedure been followed), but dismissed her claim for automatic unfair dismissal – the Tribunal held that, in particular, the complaints of 2009 and 2010 were not ‘protected disclosure’ and that the real reason for the termination was redundancy. The Tribunal, following Cavendish Munro Professional Risks Management Ltd v Geduld 2010 ICR 325, held that her complaints of 2009 and 2010 did not contain sufficient information and simply voiced concerns or allegations.

Ms Kilraine appealed to the Employment Appeal Tribunal.

The Employment Appeal Tribunal decision

The Employment Appeal Tribunal upheld the Tribunal’s decision – neither of the 2009 or 2010 complaints contained a disclosure of information that tended to show a failure to comply with a legal obligation or any other failures set out in section 43B Employment Rights Act 1996. The EAT also pointed out that the statute referenced the disclosure of “information” which “tends to show” particular information specified under the statute.

The EAT also warned, following Cavendish Munro, of the risk of ‘glossing’ section 43B Employment Rights Act 1996 to introduce a rigid dichotomy between ‘information’ and ‘allegations’ – all the EAT had been trying to state in Cavendish Munro was that a statement which took the form ‘you are not complying with health and safety requirements’ would be so general, unspecific, and lacking sufficient factual content to amount to a protected disclosure.

Ms Kilraine again appealed.

The decision of the Court of Appeal

The Court of Appeal upheld the EAT’s decision, holding that the Tribunal had reached the correct conclusion that the relevant complaints did not disclose information which tended to show a breach of a legal obligation or any other failures as set out in section 43B Employment Rights Act 1996.

Our solicitors’ comments on Kilraine v London Borough of Wandsworth

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case is important as it hopefully sets to rest a confusion in how section 43B Employment Rights Act 1996 which has existed since the judgment of the EAT in Cavendish Munro – what the Court of Appeal has emphasized is the necessity, in respect of each allegation, to consider whether there is sufficient and specific information disclosed which shows, or tends to show, information which would qualify as a protected disclosure.”

The transcript of the EAT’s decision in Kilraine v London Borough of Wandsworth can be found here.